Conservatorships and Guardianships"
A conservatorship is a court proceeding designed to protect the vulnerable and incapacitated. Conservatorships are used to protect people who cannot resist fraud or undue influence. They are also useful to protect against physical and financial abuse.
A conservatorship can be of the person, estate or both, depending on the situation. A conservator of the estate manages finances. A conservator of the person handles personal affairs such as living arrangements and medical decisions. If a conservator of the estate is appointed, he or she must be bonded and must periodically account to the court for all expenses and income of the conservatee.
A Conservatorship is initiated by a petition filed in court by a friend or family member, of even the proposed conservatee himself. The petition must be personally served on the proposed conservatee. If the incapacitated person objects, he has the right to a jury trial before being placed under a conservatorship.
After the petition is filed, the court looks at many types of evidence before it makes a determination that the proposed conservatee lacks capacity. The court reviews a declaration by the proposed conservatee's personal physician, the verified information contained in the petition, and reports by a court investigator and a court appointed PVP attorney in making its decision.
In determining who to appoint, the court will consider the conservatee's written nomination or a family member. If family members are creating the problem, the court may appoint a neutral third party such as a private fiduciary or the Public Guardian.
A conservator must be over the age of 18 and bondable. Conservators of the estate are required to post surety bonds as insurance, regularly file verified accountings with the court showing how the conservatee's assets have been used, and obtain court permission before taking any extraordinary actions, such as changing residences or selling the conservatee's home. Inasmuch as the conservator is a fiduciary and will be handling someone else's money, the court will typically not appoint someone who has previous bankruptcy filings, felony criminal convictions and judgments arising from fraud or breach of fiduciary duty.
Non-litigated conservatorship cases take two or three months to go through the courts and, of course, are subject to continuing court supervision. The cost of having a conservator appointed is generally borne by the conservatee, and includes the initial filing fee, process server, PVP fees, and a fee to the probate investigator in addition to the petitioner's attorney fees.
A Limited Conservatorship is a proceeding intended to protect developmentally disabled adults. It is initiated by filing a petition and proceeds in similar fashion though the court process; however the powers of a limited conservator are tailored to the needs of the disabled person and are generally more limited than the powers of a general conservator.
Guardianships are similar proceedings designed to protect minor children until they attain age 18.
Conservatorships may sometimes be avoided if the incapacitated person has a properly drafted estate plan; however, in some cases it may still be advisable to establish a conservatorship.
Ms. deMartino has represented both conservators and proposed conservatees in many general and limited conservatorship cases over the last 27 years, including acting as PVP counsel and representing objectors in litigated conservatorship matters.
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