Conservatorships - How to get help for an adult who can't manage alone

If an adult becomes unable to handle his or her own day-to-day financial affairs, someone else must step in. If the incapacitated person planned ahead and signed a durable power of attorney for finances, the person named in that document can take charge. (See How Durable Powers of Attorney for Finances Work). But if no planning has been done -- a common situation -- then family members must ask a court to appoint a conservator. A conservator (also called a guardian, custodian or curator in some states) is someone who has the court-ordered authority and responsibility to manage another adult's finances.

Generally, conservatorships are established for people who are in comas, suffer from advanced Alzheimer's disease or have other serious illnesses or injuries.

Pros and Cons of a Conservatorship

Conservators are subject to court supervision, which provides a powerful safeguard for an incapacitated adult's property. To prevent conservators from mismanaging the property of the people they are helping, most courts require conservators to provide periodic reports and accountings that give details about the conservatee's assets and how the conservatee's money was spent. Many courts also require the conservator to seek permission before making major decisions about the conservatee's property, such as whether to sell real estate.

In addition, a conservator must usually post a bond (a kind of insurance policy that protects the conservatee's estate from mishandling). The bond premiums are paid from the conservatee's assets -- and are an unnecessary expense if the conservator is competent and trustworthy.

Occasionally, however, a conservator will mismanage a conservatee's assets. Abuses range from reckless handling of the conservatee's assets to outright theft. Although each state has rules and procedures designed to prevent mishandling of assets, few have the resources to keep an eye on conservators and follow through if they spot trouble. Many cases of incompetence or abuse go unnoticed.

Conservatorships are time-consuming and expensive; they often require court hearings and the ongoing assistance of a lawyer. The paperwork can also be a hassle, because the conservator must keep detailed records and file court papers on a regular basis.

All court proceedings and documents are a matter of public record, which can be an unwelcome intrusion for someone who values independence and privacy.

The Court Process

Anyone -- including the proposed conservatee, family members and friends -- may object to the conservatorship in general, or to the specific choice of conservator. Someone who wants to block the conservatorship must file papers with the court, inform all interested parties (the proposed conservatee, family members and possibly close friends) and attend a legal hearing.

When someone begins a conservatorship proceeding, a judge must hear evidence on the person's mental capacity. If the judge concludes that a conservator is necessary, he or she will appoint one -- commonly, the spouse or adult child.

It's rare, but sometimes several family members or friends may vie for the task. If that happens, the judge follows preferences established by state law. Most states give preference to the conservatee's spouse, adult children, adult siblings or other blood relatives -- and a few states give priority to a registered domestic partner. But a judge who thinks someone else is best for the job may pick that person. Without strong evidence of what the conservatee would have wanted, however, it is unlikely that a nonrelative would be appointed over a relative. Because of this, conservatorship proceedings may cause great heartache if an estranged relative is chosen as conservator over the conservatee's partner or close friend. If no one suitable is available to serve as conservator, the judge may appoint a public or other professional conservator.

How Conservators Are Compensated

Conservators are reimbursed for expenses, and paid for their services, from the assets of the person they are taking care of. Payments must be "reasonable" in the eyes of a court. Generally, payments are only made to professional or public conservators, but a family member who has been appointed conservator may also seek compensation by making a request to the court.

Financial Support for Someone Under a Conservatorship

A conservator isn't required to support the conservatee, just to manage the conservatee's own assets. The conservator does have the responsibility to seek all financial benefits and coverage for which the conservatee may qualify. These benefits may include Social Security, medical insurance, Veterans Administration benefits, pension and retirement benefits, disability benefits, public assistance and Supplemental Security Income. When needed, close family members (including the conservator) often use their own money to help support a conservatee.

Ending a Conservatorship

A conservator must act until the court issues an order ending this responsibility. This ordinarily happens when: