Despite all the buzz around legal conservatorship, it remains one of the least-understood types of caregiving.
Like a power of attorney, a legal conservatorship grants someone the authority to act on someone else’s behalf, most commonly in legal and financial matters. However, unlike a power of attorney, a legal conservatorship isn’t authorized by the person requiring care. Rather, it’s court-ordered.
Keep reading to learn how legal conservatorship works and if it might be appropriate for your caregiving situation.
What is a conservatorship?
A legal conservatorship involves the court-ordered appointment of a guardian or protector to manage another person’s affairs. Typically, this order is made when the person requiring assistance, known as the conservatee, is not able to make these types of decisions for themselves. This may be due to old age or mental or physical limitations.
The conservator, or guardian, may provide a number of different roles. Most commonly, they handle the conservatee’s finances, but in some cases, their duties may expand beyond financial matters.
Typically, a legal conservatorship is put in place when another directive such as an advance health care directive or a power of attorney is no longer an option.
Both of the aforementioned directives require the person receiving care to issue and specify the terms of the authorization. If a person has not established one of these directives and loses the ability to make decisions on their own, a legal conservatorship may be deemed necessary. For instance, an elderly individual with dementia or a physical disability that limits their ability to manage their own affairs might require a legal conservatorship.
However, it’s not quite as simple as filling out a few papers and establishing a conservatorship. The person requiring care must be evaluated by a qualified physician or psychiatrist who will prepare a report evaluating the person’s mental capacity before a court order can be issued.
Alternatives to legal conservatorship
Depending on the situation at hand, there may be suitable alternatives to a legal conservatorship. Here are some common ones:
Legal guardianship: While the terms are sometimes used interchangeably, there can be differences between guardianship and conservatorship. In many cases, a legal conservatorship only covers financial matters. However, a legal guardian is typically authorized to make a wider range of personal and/or medical decisions. Keep in mind, what is authorized will depend on each unique case.
- Power of attorney: This is one of the most straightforward methods of assigning authority to another individual. Power of attorney gives someone the ability to act on someone else’s behalf in legal or business matters. However, as previously noted, power of attorney requires that the person who will receive care be the one to issue authority.
- Advance health care directive: Also known as a living will, this is a legal document where a person authorizes another person to make health care decisions for them in the event they’re unable to make decisions for themselves due to incapacity. Like with a power of attorney, this is a voluntary authorization that must be approved by the person receiving care.
- Custodial account: This is a financial account set up for one person but administered by an authorized person (or custodian with the obligation to the beneficiary).
What is a limited conservatorship?
In some situations, a limited conservatorship may be put in place. A limited conservatorship involves a conservator who takes over the affairs of an individual who may have limitations but is still capable of making important decisions for themselves. This allows them to maintain more control over their personal life and dealings than some conservatees.
How to move forward with a legal conservatorship
Establishing a legal conservatorship can be a lengthy process involving several steps. First, the person interested in becoming a conservator must file for a position in Superior Court, Probate Division. They must officially request the appointment of conservator or guardian.
If and when accepted, a hearing will be scheduled. A court-appointed attorney will be assigned to the individual to represent them throughout the ensuing proceedings. The court may also have a social worker or doctor assess the individual to review their mental status and ability to make decisions.
The potential conservatee must be present at the hearing unless the judge determines their presence is not necessary. They have the right to contest the petition, and the person petitioning must also appear.
Once the hearing is held, the judge will decide based on the facts presented whether or not to appoint a conservator. They will also determine the extent of their authority.
Conservatorship is a serious undertaking
A legal conservatorship is an advanced level of caretaking that gives the conservator a lot of power—and responsibility. That type of power isn’t issued lightly, and it requires a lot of steps and court appearances. Be sure to educate yourself on the process and understand what’s involved in a legal conservatorship before taking the next steps.