Many people are faced with the prospect of having a conservator appointed to attend to the personal affairs of a loved-one. There are both advantages and disadvantages of this legal process. There are also some alternatives to a conservatorship that may be more appealing. It is a good idea to discuss your options with an elder law attorney before making a decision on which course to take.
What is a conservator?
A conservator is a person appointed by a judge for the benefit of someone who has become incapacitated. Courts have broad discretion when determining who should be appointed as a conservator. Although they generally consider a spouse, adult child or other close family member to serve in this important capacity, the choice still belongs to the court. An independent professional, such as an attorney or accountant, may be appointed depending on the circumstances.
Once appointed, the conservator becomes responsible for managing the personal, financial and/or medical affairs of the “conservatee,” depending on the circumstances. Although a conservatorship can be ended in certain situations, termination requires court approval. Because seeking a conservatorship is a very important decision, it is important to understand both the advantages and disadvantages of taking this significant step.
Advantages of a Conservatorship in California
An advantage of court-appointed conservatorships is the required court supervision and control over the conservator. This supervision prevents the conservator from making any vitally important decisions without court permission. For instance, if a conservator must decide whether to withhold live-saving medical treatment, he or she must file a petition with the court to obtain written permission. This oversight provides greater protection for the conservatee, as well as peace of mind for the family.
Another advantage of court oversight is protection against breaches of fiduciary duty or mismanagement of funds. In California, the conservator must file an inventory listing all the conservatee’s property with the court. The conservator must then continue to provide the court with accountings that reflect all transactions involving the conservatee’s assets.
Also, because a conservator is appointed by the court, the conservator will obtain a level of authority that is useful in dealing with third parties on behalf of the conservatee.
Disadvantages of a Conservatorship in California
One big disadvantage of the conservatorship process is the expense. Because the court remains involved in the process, even after the conservatorship has been established, the costs can be substantial. Another disadvantage is that the conservatorship proceedings are a matter of public record. This means the assets of the conservatee, as well as the nature of the incapacity, will become public record and could cause embarrassment.
Probably the most significant disadvantage is that the appointment of a conservator essentially strips the conservatee of any ability to make their own decisions about most of their affairs. For most people, this can be very humiliating. There are some less restrictive alternatives to consider, however. These include advance healthcare directives, durable powers of attorney for finances and/or healthcare, and revocable living trusts. With some advance planning, the appointment of a conservator may not be necessary.