Conservatorship: How It Works, Types
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Conservatorship is the court appointment of a person (a "conservator") to manage the personal or financial affairs of another person who may lack the physical or mental capacity to care for their own needs or finances (the "conservatee").
Conservatorship can be a costly and time-consuming legal process, and it’s a fairly extreme option compared to alternatives such as a power of attorney or a special needs trust. Conservators can manage all of a person’s affairs or only financial decisions (this is called conservatorship of the estate).
A conservatee or their family can petition the court to change or remove a conservatorship. However, as seen in the high-profile case of singer Britney Spears, conservatorships can be difficult and time-consuming to overturn.
Conservatorship vs. guardianship
The main difference between conservatorship and guardianship is age. Guardianship typically applies to minor children, but conservatorship generally applies to adults (though definitions vary among states). Conservatorship usually primarily concerns finances; guardianship usually primarily concerns medical and personal care.
Typically, someone must be facing significant disability or incapacity to be placed under conservatorship. Conservatorships may be necessary to place an adult in a nursing home or other assistive environment, for example. They can apply to personal affairs, or only to someone’s assets.
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How to get conservatorship
These are the general steps to establish a conservatorship.
1. An interested party asks a judge (“petitions the court”) to appoint a conservator to oversee a person’s affairs. The petitioner must prove that the conservatee can’t make either their own financial or personal decisions, or both.
2. The court appoints an investigator to examine the situation and report back to the court with an opinion about whether a conservatorship seems warranted.
3. The court holds a hearing in which everyone comes together to review the findings and other evidence.
4. If the judge determines that a conservatorship is warranted, the judge appoints the conservator and decides what the conservator can and cannot do on behalf of the conservatee.
5. The investigator continues to visit the conservatee from time to time to evaluate whether the conservatorship is still appropriate.
Types of conservatorship
There are three types of conservatorship.
1. Conservator of an estate
Also called a conservator for finance, a conservator of an estate only manages someone’s assets. The court supervises major decisions such as the purchase of property or investments, and the conservator must provide a record of spending to the court every year. If a minor inherits a large amount of money, a court may appoint a parent or legal guardian as the conservator of their estate.
» Another option: How to set up a trust and name a trustee
2. Conservator of the person
A court order can establish a personal conservatorship for an adult who can’t take care of their personal or medical needs on their own. Typically the court must verify any diagnosis before establishing a conservatorship. As with an estate, the conservator must file reports with the court every year documenting major decisions they made on behalf of the conservatee.
3. General vs. limited conservatorship
Conservatorships can be general, where the conservatee has very little decision-making power, or limited, which only permits the conservator to manage specific affairs.
General conservatorships are typically for elderly people and adults who have been seriously impaired.
Limited conservatorships usually work better for adults with developmental disabilities who do not need a general conservatorship’s higher degree of oversight.
Pros and cons of conservatorship
Pros:
Consistent oversight. Because the court must oversee all major decisions the conservator makes, conservatorships can provide structured protection of a conservatee.
High level of protection. If someone is incapacitated and resistant to assistance such as medication, a nursing home or other facility, a conservatorship can legally get them the help they need.
Singular. Having a designated conservator can simplify decisions and reduce conflict among family members.
Cons:
Restrictive. Conservatorship, depending on the type, removes significant rights and independence from a person and can be difficult to overturn.
Costly. It can take months to set up a permanent conservatorship, and costs include attorney fees, court fees and investigator’s fees. The annual review process can be costly and time-consuming, as well. The conservatee’s estate typically pays professional conservators (non-family members).
Public. Conservatorship proceedings are on the public record in most states, which can affect the privacy of the conservatee and their loved ones.
Alternatives to conservatorship
Conservatorship is an extreme measure that can remove significant rights from a person, so it’s not the best or only option for most people. Several alternatives can also help protect vulnerable people.
Financial
A durable financial power of attorney, or POA, gives someone else the ability to handle your finances, which can range from daily expenses to investments, legal claims and estate planning. Unlike a standard power of attorney, a durable POA stays effective if you become incapacitated.
A special needs trust is an estate planning tool designed to leave funds for a beneficiary with a disability and protect them against financial abuse while preserving their eligibility for government benefits.
With a revocable living trust, you can appoint a trustee to manage your financial affairs if you become incapacitated, but you must be competent when establishing the trust.
Medical
A durable medical power of attorney grants someone else the ability to advocate for your health care needs and make decisions about your medical treatments. This agent may be called a health care proxy.
A health care proxy is someone you appoint to make medical decisions in your stead when you can’t. Unlike a conservatorship, this doesn’t require a legal designation; typically you just have to fill out a form with your medical provider.
State differences in conservatorship
Definitions of conservatorship vary among U.S. states and jurisdictions. In some states, guardianship is only for minor children and conservatorship is for adults. In California, for example, both roles are called conservatorship and are separated by personal and estate.
If you’re looking into conservatorship as part of your estate planning, consult an estate planning attorney in your state to help you navigate your state’s rules.
