A conservatorship may be necessary when an individual can no longer make financial transactions or decisions for himself. He may have lost functional capacity and is making bad financial choices or perhaps is being exploited by another. When the court grants a conservatorship, the conservator can conduct business on behalf of the ward (the person who was making bad decisions). For instance, the conservator manages the funds and property of another, opens or closes bank accounts, and can make or break contracts. The conservator receives, collects and makes decisions regarding the ward’s property. A conservatorship can be avoided if the incapacitated individual had executed a valid Power of Attorney prior to incapacity, appointing someone else to manage his or her affairs.
If a conservatorship is necessary, there are procedures that need to be followed. A petition is filed in the probate court in the county in which the proposed ward resides. If the proposed ward does not have an attorney, the court will appoint one within five days of the filing of the petition. During the hearing, arguments are made and evidence is presented regarding the capacity and actions of the proposed ward. The standard that the court applies when determining if a conservator is needed is whether the proposed ward lacks sufficient capacity to make or communicate significant responsible decisions concerning the management of his property.
When a conservator is appointed, he or she will have to post a bond in order to guarantee that the conservator “does the right thing” with the ward’s assets. Once the court has appointed a conservator, the court oversees the actions of the conservator by requiring financial returns to be files with the court periodically. Almost anyone can serve as a conservator, but more often than not an adult child steps in to this role.
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Bond – The obligation of another to guarantee the proper performance of a duty and to pay any loss caused by the failures to so perform; in guardianship law, a guarantor, called a “surety”, agrees to pay any loss suffered if a guardian or conservator fails to properly perform the duties of the office (mismanagement, loss through negligence, misappropriation, theft, etc.)
Conservator – a person who has been given control and authority over the funds and property of the ward; the conservator is a fiduciary who owes fidelity and loyalty to the ward and who must always act in the best interest of the ward.
Estate – The name given to all the collective assets of a ward; also may be used to refer to the entire case involving a particular ward (e.g., Estate of John Doe).
Fiduciary – A person having the duty to act primarily for another’s benefit in matters assigned or undertaken by the person; a person holding the character of a trustee.
Guardian – A person who has been given control and authority over the person of the ward; the guardian holds a position similar to that of a parent over a minor child; the guardian is a fiduciary who owes fidelity and loyalty to the ward and who must act always in the best interest of the ward.
Guardian-ads-litem – A person appointed by the court to investigate and represent the best interest of the ward with regard to a particular matter pending before the court.
Incapacitated Adult – An adult who has been found by the court to lack sufficient capacity to make or communicate significant responsible decisions concerning his or her person or concerning the management of his or her property.
Letters of Conservatorship – The formal document issued by the court to evidence the appointment of a conservator for a ward and the authority of the conservator then to act; a conservator appointed by the court’s order has no authority to act until the Letters have been issued.
Letters of Guardianship – The formal document issued by the court to evidence the appointment of a guardian for a wards and the authority of the guardian then to act; a guardian appointed by the court’s order has no authority to act until the Letters have been issued.
Personal Status Report – The periodic report of a guardian on the condition, circumstances and needs of a ward.
Petition – A formal, written application to a court requesting judicial action on a certain matter.
Proposed ward – An adult, for whom a petition for the appointment of a guardian or conservator has been filed.
Returns – The periodic reports or accountings of a conservator, consisting of a statement of all receipts and expenditures together with an updated Inventory and Asset Management Plan.
Ward – An adult for whom a guardian or a conservator has been appointed.