Beyond The Will

It can be difficult to talk with loved ones about protecting their assets or managing their financial affairs. Even if you have been assisting your loved ones with their finances for some time, it can be quite emotional and even complicated to explain that it might be time for more protection, and what that would look like. This post will assist you in doing just that: explaining conservatorship to your loved one.

What is a conservator?

A conservator is a court-appointed fiduciary who oversees and manages the estate – particularly the finances – of the protected individual. A conservator protects the property and business affairs while a guardian manages the individual’s physical well-being. Potential duties include collecting, holding, and investing assets, paying bills, operating a business, and selling tangible personal property.

A conservatorship may either be unlimited or limited in scope and may be limited to specific actions or a specific property or apply to all of a protected person’s property. A full conservatorship generally takes over all of the individual’s financial affairs. In such a case, a conservator must manage and protect all aspects of the individual’s finances, including assets and income. They may exercise authority only as necessitated by the mental and adaptive limitations of the protected person. If the court determines that a protected person maintains capacity concerning some aspects of his or her financial affairs, it may establish a limited conservatorship allowing the protected person to retain some level of control and management of financial affairs.

Who may serve as a conservator?

Any qualified, suitable individual or corporation may serve as conservator of a protected person. Typically, a child of an elderly individual, or the parent of a minor, serves as a conservator for their loved one. Suppose the individual’s fiduciary affairs are complex, such as the management of various entities or properties. In that case, it may be advisable to appoint a professional conservator.

A conservator may be nominated in an estate plan or durable power of attorney instrument. In that case, the court “may” consider such nomination. The court is not required to appoint the nominated individual or corporation as conservator but will consider the preferences of the person being protected.

Why would my loved one need a conservator?

There are no restrictions on what kind of circumstances could involve the appointment of a fiduciary to manage financial affairs. While many conservatorships involve older adults, questions of capacity can arise at any age. Families often use conservatorships to help protect loved ones who can no longer manage their day-to-day financial affairs. A conservator may also be appointed for a minor or an adult who, because of disability, cannot manage their own property, or has property that will be wasted or dissipated unless management is provided.

Indeed, an appointment may be necessitated when an individual lacks mental capacity to manage his or her own financial affairs due to mental illness, cognitive impairment, a substance use disorder, or any variety of compromising conditions that impact their competence to make meaningful financial decisions. Thus, it is not uncommon for a conservatorship to be sought for a young person, particularly where that young person has significant assets. Our office previously published an article in Massachusetts Lawyers Weekly about the Britney Spears’ conservatorship matter, which has been sensationalized in the media over the past year.

Does my loved one still need a conservator even if I serve as their attorney-in-fact?

The short answer: maybe. Like a conservator, an attorney-in-fact is a person designated under a durable power of attorney instrument who is authorized to act on behalf of another person, whether in business, financial, or personal matters. The powers conferred on an attorney-in-fact may be general, limited, or special.

A conservator bears ultimate responsibility for a protected person’s assets, trumping the individual appointed under a durable power of attorney regarding financial decision-making authority. Conservators have the same power to revoke or amend a power of attorney instrument which the protected person would have were he or she not incapacitated. Furthermore, a conservator may demand that the attorney-in-fact account for actions and transactions performed concerning the protected person’s assets. If you currently serve as attorney-in-fact, you should determine whether you have appropriate authority to assist with financial affairs; if not, you should consider pursuing a conservatorship.

So, I think my loved one needs a conservator – what do I do now?

After you’ve determined that a loved one needs a conservator, you or someone else will need to file a Petition with the appropriate Probate and Family Court. It must be accompanied by a Medical Certificate completed by a licensed physician or clinician who evaluates and certifies the medical findings of the individual to be protected. The certificate demonstrates the scope of conservatorship needed for the protected person.

How long is a conservator appointed for?

While a Petition for conservatorship is pending, the court may appoint a temporary conservator if the court finds that the time it will take to appoint a permanent conservator “will likely result in substantial harm to the property, income or entitlements of the person to be protected or those entitled to the person’s support occurring prior to the return date,” and no other person has authority to act in the interim. An order appointing a temporary guardian typically expires after ninety (90) days and is renewable for up to ninety (90) days thereafter.

If the individual requires permanent protection due to an enduring impairment, a permanent conservator may be appointed for the protected person’s lifetime. If it is determined that the protected person no longer requires a conservator, the protected person or any person interested in the protected person’s welfare, may petition for the removal of a conservator.

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