What is a conservatorship?
A conservatorship is a court order that puts one person, the conservator, in charge of making decisions on behalf of another, the conservatee, who is not able to make decisions for themselves. In most cases, there is a medical reason for that inability. For example, conservatorships are often used when elderly individuals lose their ability to live independently, or become a risk to themselves or others, due to dementia or other serious health conditions. The person appointed to be in charge can often have significant authority, but they must still keep the court updated regularly as to the status of the conservatee.
Conservatorship laws vary from state to state. There are a few different types of conservatorships, sometimes called adult guardianships. These different types cover different periods of time and types of decisions to be made, such as medical and financial decisions. The process the court follows will also vary from state to state and depend on the type of conservatorship being requested, as well as the urgency of the situation.
What are the powers and duties of a conservator?
Conservators have a lot of responsibilities. Principally, conservators must look out for the best interests of the person they are charged with protecting. This means that any decisions regarding financial or medical matters will either be approved by or directly made by the conservator.
How much power a conservator has over financial matters will depend on the size of the estate they are managing and what is required by the court’s order. Similarly, the more medical care a person requires and the less able that person is to make medical decisions themselves, the more decision-making authority a conservator will possess.
The courts monitor conservatorships by scheduling regular check-ins with conservators, though the frequency is rarely more than once a year. This will generally include the auditing of a report provided by the conservator that includes relevant information about the conservatee’s financial affairs and medical progress.
What is an abusive conservatorship?
Abusive conservatorships are a very real problem and rather difficult to identify. The abuse can be physical, mental, or financial. The inability of many conservatees to speak up for themselves, or even know they’re being taken advantage of, makes it difficult to report abuse to anyone.
Common abusive and illegal conduct includes:
- mismanaging finances
- forced unnecessary medical treatments
- conservators overpaying themselves
- physical abuse
Signs friends or family might notice are unexplained bruises, bed sores, bounced checks, missing personal items, or a drastic change in the conservatee’s personality. This type of conduct can easily go unrecognized due to the amount of control held by conservators and the nature of these situations.
It is important to note that some conduct can be perceived as abusive when a conservator’s actions may just be legally confusing to non-lawyers. It is a complex and often rather personal and private relationship. One example of confusing conduct involves “spending-down” cash in order to ensure their conservatee gets or maintains eligibility for certain benefits provided by the government. Spending-down is a common practice that requires maintaining a low bank balance or minimum level of assets, as certain government benefits require individuals to be below a certain financial threshold. To someone on the outside, this may appear to be squandering limited resources, when in fact, the goal is to ensure that the long-term costs of care get covered by government benefits.
What can be done to end or modify a conservatorship?
A conservatorship can be modified or ended if it isn’t working out or is no longer needed. A court order is required to end or modify a conservatorship. To get a court order, the conservatee, or someone on their behalf, files a petition with the court that granted the conservatorship, then appears at a hearing to present evidence.
The court will want documented evidence that the conservatorship should be modified or terminated. The conservatee may show documented proof that the conservatorship no longer serves its purpose, which can include:
- medical reports
- financial documents
- live testimony
- supporting affidavits
Judges will review the evidence and make a decision based on what is in the best interests of the conservatee.
Individuals seeking to end or modify a conservatorship should ask a lawyer before starting the process, especially if the conservator does not agree with the proposed modification.
What to do if you or someone you know has an abusive conservator?
One problem conservatees run into when trying to modify or terminate an abusive conservatorship is that they are often unable to effectively advocate for themselves. Conservatees can appear less capable than they really are when talking about their experiences with the abuse. Getting help with reporting the abuse often requires asking medical professionals, legal professionals, or friends.
It can be particularly difficult for individuals who believe their friend or loved one is being abused by their conservator, but don’t have any evidence. If it seems as if there may be more going on than meets the eye, talking to an attorney familiar with conservatorships can help.
Law enforcement may need to get involved if there is evidence of physical abuse, fraud, or theft. In most cases, contacting an attorney outside the conservatorship can be helpful to investigate the situation. If the conservator needs to be changed or removed, the attorney can help start the process.
Are there alternatives to a conservatorship?
Conservatorships are generally a last resort. Like the probate process when a person dies without a Last Will and Testament, the conservatorship process starts when a person is incapacitated or becomes unable to make decisions and did not leave instructions for what to do in that situation. So while there are no alternatives to the conservatorship process, there are ways to leave instructions so that the conservatorship process doesn’t ever start.
A Durable Power of Attorney effectively allows an individual to declare who they want to manage their financial affairs and make their medical decisions if they are unable to do so for any reason (or just in specific situations). These can also outline how the decisions should be made in various circumstances. Having a Durable Power of Attorney in place before an incident leads to incapacity will allow the person selected to step in to help right away, rather than waiting for a county and court to figure out what to do.
For individuals more concerned with health matters, creating an Advance Directive, or Advanced Health Care Directive, allows for the selection of the person who can make medical decisions in case of incapacity. A Durable Power of Attorney may also contain similar provisions, but can also allow for financial decisions to be made as well.
Creating a Durable Power of Attorney, and Advance Directive, will allow a person to choose someone they trust most with their life, health, and money, rather than leaving that decision to a court ordered conservator.
This article contains general legal information and does not contain legal advice. Rocket Lawyer is not a law firm or a substitute for an attorney or law firm. The law is complex and changes often. For legal advice, please ask a lawyer.