Conservatorships

A conservatorship is essentially a guardianship for an adult who lacks capacity to make their own financial or medical decisions. A conservator can be appointed over someone’s person, estate, or both. Generally, if an individual executes valid power of attorney and advance health care directive documents while they have capacity, no conservatorship will be necessary, as these documents perform essentially the same function as a conservator of the person and estate. Note that there are unusual circumstances in which a conservatorship may be necessary, even if these documents have been executed.

Most commonly, conservatorships are over elderly individuals with dementia or Alzheimer’s disease who failed to execute appropriate estate planning documents prior to their incapacity.

The person over which a conservatorship is sought is called the “proposed conservatee” before the conservatorship is established, and the “conservatee” after establishment.

What is the process for a conservatorship? How long does it take?

A conservatorship requires that an initial petition and supporting documentation be filed with the court in the county in which the proposed conservatee resides. Once the court accepts these documents, it will issue a hearing date for the initial appointment. Depending on the county, the hearing date assigned for the initial appointment may be set anywhere from 2 to 10 months out from the date of filing.

If there are urgent circumstances, a Petition for Appointment of Temporary Conservator may be filed with the initial petition. A temporary conservator can be appointed in as little as 5 business days. A temporary conservator will usually serve in a temporary capacity until either the conservatorship is terminated or someone is appointed as the general conservator.

If the proposed conservator is appointed as the conservator at the initial hearing, further documents are required to be filed. The conservator will thereafter marshal the assets of the conservatee and inform the court on the amount and nature of the assets in the conservatorship estate. The court thereafter supervises the ongoing administration of the conservatorship estate until either the death of the conservatee or the termination of the conservatorship.

How are attorney fees paid in conservatorship cases?

Attorney fees can be paid by the petitioning person’s own resources to the attorney as invoices are due and payable. If the conservatorship estate has sufficient funds for attorney fees to be paid from the conservatorship estate, the court may award attorney fees paid from the conservatorship estate on a request to the court, which is usually included with an annual or biennial accounting.

Note that recent changes to conservatorship law, effective in 2022, place limitations on attorney fees that may be paid from the conservatorship estate. Consult with your attorney to see if any of these changes have an impact on the payment of fees from the estate in your particular situation.

Other Uses for Conservatorships

A conservatorship may also be appropriate if a victim of a car accident is rendered comatose or incapacitated as a result of the accident. The statute of limitations for a personal injury claim for a car accident is relatively short – only two years. If the condition of the victim does not improve in enough time to file a lawsuit for damages, a conservator may be an appropriate to enable the conservator to step into the litigation on behalf of the victim.   

A conservatorship may be appropriate for you or your family if any of the following apply:

     ○     Your spouse, parent, or family member has been diagnosed with dementia or Alzheimer’s disease, and they need someone to manage their financial and medical affairs.

     ○     A medical professional requires a conservatorship to be established before they will provide you with information about a loved one.

     ○     You have concerns that a family member is a victim of elder abuse or undue influence.

     ○     An elderly family member is falling prey to internet scams.  

     ○     A family member has been rendered incapacitated as a result of a car accident and requires a conservator to step into the litigation on behalf of the victim.