What is the Role of a Conservator?

Conservatorship Attorney

Typically, a conservatorship is more comprehensive than a power of attorney and guardianship. POAs are in charge of financial matters, while guardians are in charge of personal and financial affairs. On the other hand, conservators can be put in charge of an individual’s financial, healthcare, and legal affairs.

How do people get under conservatorship?

Usually, a plea filed by an individual, their family, friends, or an organization typically results in the court appointing a conservator after a hearing. First, the court must determine the subject’s mental incapacity. The court will evaluate the subject personally to determine that the person’s incompetence makes them a danger to themselves and others. By this definition, incompetency means the subject’s inability to understand the nature and quality of their acts.

Reasons for a conservatorship?

The judge will put someone under conservatorship when it’s established that they no longer possess the mental capacity to run their own affairs. Usually, physical disability is not a reason for conservatorship. On the other hand, mental disabilities are great reasons for conservatorship. Here’s a look at some:

• Coma or permanent incapacity: A person who is completely incapacitated or in a coma cannot react, choose, or express their choice.
• Dementia, Alzheimer’s disease, and other mental disorders: Even though individuals in this situation can clearly state their objectives, they are nevertheless viewed as mentally disabled.
• Hereditary or chronic mental impairment such that the individual is unable to ever mature into adulthood or achieve independence.

Types of conservatorship

Financial Conservatorship

The conservator is in charge of all financial matters pertaining to the ward. It means the conservator must give permission for the ward to access their own assets, including money and investments. This type of conservator is known as a conservator of the estate.

When a judge determines that an individual is incapable of managing their finances, it will put a conservator in charge of their estate. This conservatorship may require the individual to oversee the ward’s finances, including income and benefits.

Conservators of the estate may be responsible for things like:

• Paying the ward’s bills
• Paying the ward’s taxes
• Collecting the ward’s income
• Ensuring the ward’s valuables are sufficiently insured.
• Investing money in a reasonably responsible manner
• Putting together a list of the ward’s assets to present to the court
• Providing the court with regular accountings of the ward’s assets
• Selling the estate’s assets when the ward’s or estate’s interests require it.
• Maintaining and overseeing the ward’s assets, including saving them in interest-generating bank accounts.
• They carry out meticulous records of any financial transactions on the ward’s behalf.

The conservator could also submit an application for the proper public assistance as required or available to the conservatee in case their estate runs short of resources. In general, the conservator’s role is to ensure enough resources to support and care for the ward. However, the conservator can’t pay the ward’s debts or bills out of pocket unless they volunteer or have previously signed up to do so.

Physical Conservatorship

This type of conservator is known as a conservator of, the person in charge of the ward’s well-being.

They may need to frequently collaborate with the individual in charge of the ward’s money to plan for the individual’s healthcare and daily needs. Some of the duties of a conservator of the person include: 

• Organizing the ward’s meals
• Organizing the ward’s wardrobe
• Organizing the ward’s shelter
• Arranging transportation
• Arranging for household services
• Making plans for recreation
• Ensuring the health of the ward
• Establishing plans for the ward’s healthcare and safety. The plans include employing a certified live-in nurse.
• Deciding the ward’s residence (e.g., obtaining medical permission to send the ward to an assisted living facility if necessary)
• Making healthcare arrangements (such as scheduling visits, requesting the court’s approval to sign on the ward’s behalf when they require a major medical operation, etc.).

Like conservators of the estate, conservators of persons are typically not expected to cover the ward’s basic expenses out of their own wallets.

General VS Limited Conservatorship

Additionally, a conservatorship may be general or limited. In a general conservatorship, the conservator is given authority over the ward’s financial affairs, physical well-being, and medical decisions. In other words, the conservator is both the conservator of the person and the estate.

On the other hand, in a limited conservatorship, the conservator only has authority over a few select aspects of the ward’s life. This is typically granted when a mentally impaired adult must keep getting care from their guardian while also having as much independence as possible. The conservatorship could be restricted to the special needs of the ward.

Depending on the duration, conservatorships can also be classified by duration as:

• Short-Term: Short-term is typically provided for 90 days and is only used to meet urgent and specialized needs after unexpected incapacitation. This type of conservatorship is typical in states that allow conservatorships without a formal hearing.
• Temporary: These are only applicable under specific conditions or for a particular time. For instance, from the time a person enters a medical coma until they recover,
• Permanent: This conservatorship will stay in place for the duration of the ward’s life if their condition doesn’t improve. Of course, the ward can request its termination, but they’ll need to present their case in court persuasively.

How do conservators work?

What is the role of a conservator? The duties of conservators depend on the type and nature of conservatorship, as described above. Depending on the circumstances, they may be in charge of both the ward’s financial and personal care.

Likewise, a person may have more than one conservator: one in charge of the estate and the other taking care of their daily requirements. In limited conservatorships, usually used in cases involving developmentally impaired people, the conservator allows the conservatee as much independence as possible. Limited conservators help with big decisions only. These include approving surgery, approving marriage licenses, etc. In the general case, being a conservator means:

Fiduciary duty

As the conservator of the ward, you have a responsibility to act in their best interests. For instance, you can’t use a ward’s resources for your benefit. You also can’t start using the ward’s home as your own after moving them to a facility. But you can apply for the court’s permission to sell the ward’s properties if you need money for their medical expenses and other needs. However, you’ll need to keep records of every transaction.

The court enforces the fiduciary duty. The ward’s family and other pertinent parties may file a personal injury case against you if they think you are acting selfishly.

Securing a conservatorship bond

The majority of conservators are obliged to acquire a conservatorship bond, which is comparable to an insurance policy, before starting their role as conservators. A conservatorship bond is a cover against risks such as theft, misappropriation, and improper handling of the ward’s assets. A ward may not require a bond if they do not possess significant assets.

By obtaining a bond, conservators promise to uphold their legal commitments because failing to do so could result in them embroiling in personal injury claims. The court establishes the bond amount, and it’s usually high; nevertheless, the conservator typically only needs to pay a small annual premium.

Record keeping

Every year, the court needs to be given a breakdown of the ward’s estate, including gains, losses, and expenses. The court audits the accounts, and frequently, the evidence must be provided to back up every transaction. Therefore, it’s crucial to keep good records.

Conservators of the person should also document their decisions on the ward’s behalf. They can use the records to support their statements when asked to defend themselves in court.

Keeping the ward’s preferences in mind,

Although a ward cannot overturn a conservator’s decisions, the conservator should consider the ward’s preferences when making healthcare choices. Making decisions in accordance with the ward’s indicated preferences, including their declared health care directions and other requests, gives them peace of mind.

It’s also wise to allow the ward to engage in decision-making that is consistent with their skills and to assign them fair responsibility for choices that could influence their well-being.

Obtaining court permission on significant decisions

The conservator will typically need to seek a court order before taking any action that could significantly affect the ward’s life (such as selling their house or buying them a new place to live). The same holds for decisions involving life-altering healthcare decisions. For instance, if a ward has dementia, a conservator may decide that moving them to an assisted living facility is the best for the 24/7 care and security they need. But before making such a choice, the conservator must obtain the court’s permission.

A conservator must always work under the guidance and supervision of the court and in conformity with the conservatorship plan submitted to the court. The court may appoint lawyers to work with. If one is unsure if an action requires court approval, it’s best to consult with an attorney. Call Hess-Verdon & Associates at 949-706-7300.

Making reports about the ward’s condition

The conservator must provide periodic reports to the court detailing the ward’s condition, the initiatives taken to promote their independence, and the conservator’s assessment of whether their appointment is the most comfortable course of action for overseeing the ward’s needs.

Working with an attorney and other estate planning professionals

Conservators should seriously consider having an attorney on their team to guide them if they want to avoid unanticipated financial liabilities resulting from negligence or wrongdoing, particularly if they lack prior experience.

The judge will probably grant the conservator’s request to appoint a lawyer if the ward will benefit from the lawyer’s services and has enough assets to cover their fees and costs. Likewise, if a tax expert is needed, these costs can probably be taken care of by the ward’s funds with the court’s consent.

What is the limit of a conservator?

There’s a chance for wrongdoing, given the enormous control conservators have over their wards. It is critical to emphasize what is not regarded as one of the conservators’ responsibilities to prevent elder abuse.

In general, a conservator can’t do the following:

• Mix their personal resources with the ward’s (e.g., saving their money in the same account as the wards)
• Utilize the resources of the ward for personal benefit.
• Acting with the intent to harm the ward’s property or life
• Borrow money for private use from the ward’s estate.
• Self-dealing activities (such as selling the ward’s house so they can earn a commission or moving the ward out of their home so they can use it)
• Make speculative or very reckless financial decisions (such as investing the ward’s money in a venture that’s not likely profitable).
• Keep the ward apart from family and friends when the court hasn’t permitted it.
• Withholding from the ward’s food, medical treatment, or other necessities
• Preventing the ward from getting married (unless the court has established they lack the mental competence for that decision)
• Inflate the number of hours spent managing the ward’s assets or life to get more money.

What happens if a conservator abuses their position?

The court monitors conservatorships, so if a conservator is acting negligently or engaging in misconduct, they may be discovered. This is in contrast to trusts and powers of attorney, which can act in place of conservators if they were established before the incapacitated adult lost mental competence.

If a conservator is found negligent, irresponsible, violent, or even dishonest, the court can remove them from the position. Additionally, the court can assess any damages resulting from their misconduct and order them to compensate the ward’s estate.

Sadly, there’s also a chance that most conservators’ wrongdoings or irresponsibility will go unnoticed. Most wards lack the mental capacity to recognize a conservator’s misconduct, so they might not call for help when it occurs. Therefore, it’s essential for the ward’s family members to monitor the conservatorship and contact a conservatorship attorney at the first indication that the conservator may be acting improperly.

Call today at 949-706-7300.

Can a ward revoke a conservatorship?

A ward cannot revoke a conservatorship. It can only be terminated by court order, meaning the ward has to file a formal legal appeal and appear at a formal hearing. They will have to prove that their circumstances have improved and they no longer need someone in charge of their finances, healthcare, and legal decisions. In the absence of this proof, the conservatorship is forever.

Conservators vs. guardians

Guardians and conservators are both chosen by the court. While a guardian is responsible for the ward’s custody and care, a conservator manages the ward’s legal and financial matters. A guardian must respect their ward’s advance instructions for health care. The conservator ensures adequate money to cover the ward’s bills with the care home or assisted living facility and any unforeseen expenses.

A conservator must provide a financial bond to guarantee that the ward’s assets or properties won’t be misused. Conservators and guardians must provide an annual formal report to the judge.

Individuals put under guardianship or conservatorship forfeit control over their financial and personal affairs. Because of this, the court will ordinarily deny conservatorship or guardianship if a less stringent solution is available to meet the individual’s needs.

Before taking any more action, conservators should consult with an attorney specializing and experienced in conservatorship matters. A conservatorship attorney will help you stay on the right side of the law and avoid getting embroiled in personal injury suits. If conservators require legal counsel, they most likely won’t have to cover the costs themselves; if the ward’s estate is adequately established, the expenses might be covered.

Hopefully, this has helped you understand what a conservator is, what they do, and how much power they have. If you need help performing your obligations as a conservator or settling disputes about your ward’s estate, get in touch with us; we’ll be pleased to help. We are qualified estate attorneys in California with years of experience handling estate planning, settlement, and litigation issues. Contact us to discuss your problem and see how we can assist.

The Types of Accounting to Be Disclosed to the Beneficiary

An accounting report may be needed, but to reduce the paperwork, it’s provided during the closing of the final statement. Further, the report has to contain information about the values of the assets and estate and an explanation of all transactions done. Either way, there are two types of accounting to be disclosed:

The Informal Accounting

As an executor, you’ll need to provide an accounting of the estate’s assets and debts to the beneficiaries. Accounting can be done informally without going through the court system. To do an informal accounting, the executor will compile a report detailing all aspects of the estate’s finances. This report will then be shared with all beneficiaries, along with a release and refund agreement.

The Judicial Accounting

The beneficiaries of an estate can object to the executor’s accounting report and refuse to sign a release form. In this case, the executor must disclose the formal judicial accountings. This process is more expensive and time-consuming, as it must go through probate court. The vast majority of estates will not require a formal accounting report to release the beneficiaries’ share of the estate. But, when substantial information has not been disclosed, most beneficiaries will have to wait for judicial accounting. On the other hand, supervised estates and insolvent assets must also go through the formal accounting process.

Are you not getting the appropriate information? When should you get a probate lawyer?

If you think the executor is not managing an estate properly, you should speak to a probate lawyer. You can take different legal actions to stop this and protect the estate’s assets and your right to inherit anything.

You may appeal to the judge asking the executor to file an updated inventory, appraisal, and statement on assets if they are omitted from a property’s inventory as listed. You may file a petition regarding the removal of the executor if they are not carrying out their obligations. Whenever you believe there is a potential for assets to be lost, you are advised to take action as soon as possible. When considering your options, it would be best if you spoke to an experienced probate litigation attorney.

Wrapping Up

An executor automatically needs not to provide you as a beneficiary the accounting on assets and estates. But, upon your request, they are legally required to comply. It’s common for executors to release funds and complete their duty without providing the accounting. Everything could go wrong with theft and fraud being in the loop. As a beneficiary, when you are not satisfied with their dealing, you need to request a formal judicial accounting. Contact Hess-Verdon & Associates at 949-706-7300 for a consultation.