A Conservatorship is a legal proceeding made through a probate court to appoint someone as Conservator to exercise the powers and duties over the estate (e.g. finances, assets) of an incapacitated person. Incapacity can be due to the fact that the person is a minor (under age 18) or because an adult is incapacitated by disability, illness, or frailty.
A Conservatorship is established by a Petition to the Court for appointment of a Conservator, typically supported by a physician’s statement in support of conservatorship. This is a court proceeding, which means that the process could be time consuming or costly, particularly if the matter is contested. Likewise, medical information is typically necessary to prove the incapacity and therefore the process can be invasive to someone’s privacy.
Once appointed, a Conservator may have a range of powers over the finances and assets of the incapacitated person, including managing the incapacitated person’s estate, and paying lawful debts and reasonable charges for the support, maintenance, and education of the incapacitated person. A Conservator is required to file an Inventory with the Court listing the assets of the incapacitated person at the time the Conservator was appointed. Likewise, the Conservator is required to file yearly accountings with the Court regarding expenditures made on behalf of the incapacitated person. The Conservatorship continues until the incapacity of the protected person ends, typically either upon a minor reaching age 18 or upon the death of the incapacitated person. The Conservator will file a Final Account at the end of the Conservatorship.
Typically, a Power of Attorney can accomplish the same result as a Conservatorship at less cost and without involvement of a court, provided the person granting the Power of Attorney is competent. However, if the person is not competent or if the family situation is particularly rancorous, the additional time and cost of Court supervision may ultimately be the most efficient means to provide for the incapacitated person. Since the Power of Attorney does not terminate the principal’s power to enter into contacts, a Conservatorship might be preferable in situations where the principal might be influenced by others to enter unwise contracts.
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