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A Guide to Adult Conservatorship

Posted by attorney Amanda Mathis

As technology continues to improve and the economy continues to decline, the creativity and pervasiveness of financial scams increases. Every channel of communication is now being used to target people who are overly trusting or suffering from a frailty of the mind. Those suffering from dementia or Alzheimer's and other mental disorders are more susceptible to being taken advantage of by scam artists or even people that the individual knows and trusts. This is just one financial risk that incapacitated individuals face in our world. Everyday transactions and financial decisions become difficult and hard to manage for incapacitated individuals. This can threaten their financial well-being and possibly put their physical safety and health in jeopardy. If you have a loved one that is incapacitated and at risk, then you may need to consider whether a Conservatorship is appropriate for them.

What is Conservatorship? Conservatorship is the court process that determines whether a person is no longer able to make and communicate sound and responsible decisions to manage their property and finances. If so, then the court appoints a person to make decisions on the incapacitated individual's behalf concerning property and finances. The person appointed to make decisions is called the Conservator. The person who is deemed incapacitated is called the Ward. The appointed Conservator is under complete court oversight and must provide a detailed report every year to the court about how the Ward's assets and funds were used and describing the Conservator's future plans for the Ward's finances. The Conservator must always work within the requirements of the court and can be removed if the Conservator does not make responsible decisions for the Ward.

Is a Conservatorship Appropriate for your loved one? The disabilities that develop due to age or the existence of mental disorders may cause your loved one to be unable to manage their property and everyday finances. Your loved one may not be able to remember what property they own or where their accounts are located. He or she may not be able to balance a checkbook or remember how to write a check or complete an online transaction. Accounts may be unintentionally over-drafted or depleted. Your loved one may not remember to check the mail or recognize the significance of bills and other financial notices. In addition, your loved one could be susceptible to being taken advantage of by caregivers, other family members, or scam artists. The mail and media are filled with schemes and scams targeted at overly trusting or incapacitated individuals. Often, it is difficult to determine whether a piece of mail is legitimate or a scam. To avoid these dangers and risks of financial exploitation, it may be necessary to have the Court appoint you or another person to become the Conservator of your loved one.

Is it hard or expensive to obtain a Conservatorship? What is the process like? The decision about whether to pursue Conservatorship of your loved one is not to be taken lightly. If the Conservatorship is successful, then your loved will lose the legal authority to make decisions about their own property and finances. Your loved one will lose the ability to buy and sell property, open bank accounts, and enter into contracts. The courts certainly do not take this lightly and have developed a system with numerous protections for the proposed ward. Therefore, the process is cumbersome and fairly expensive. The court fees alone are usually between $700 and $900. A court hearing is required in each case, and seeking advice from an attorney is highly recommended. This is especially true if the Conservatorship will be contested by the proposed ward or another person who wants to be the Conservator. This can make the process more expensive.

Part of the reason the process is expensive is because there are a lot of people involved in each Conservatorship. First, the proposed ward must meet with a medical professional or counselor appointed by the court. This neutral party reports to the court about the medical and mental conditions of the proposed ward and his or her opinion about whether the proposed ward is in need of a Conservator. Second, the proposed ward is assigned an attorney to represent his or her interests and wishes in the case. If the proposed ward wants to hire his or her own attorney, then he or she is free to do so. Third, in many cases, the court appoints a Guardian Ad Litem in the case. The Guardian Ad Litem is an attorney who is responsible for discussing the case with everyone involved and to report to the court whether the Conservatorship is in the best interest of the ward and whether the proposed Conservator is the appropriate person to be the Conservator. There are other requirements and nuances of Conservatorship that make the process hard to understand and follow.

Do I need to hire an attorney to help with obtaining a Conservatorship? An attorney for the proposed Conservator is not required to complete a Guardianship. However, because there are so many actors involved and because the procedural requirements are strict and cumbersome, this process can quickly become confusing and overwhelming. This process may also be intimidating and frightening to the proposed ward who may not understand what is happening or may disagree that he or she needs a Conservator. For these reasons, seeking legal advice from an attorney experienced in Guardianship and Conservatorship is highly recommended. An attorney who regularly practices in this area can provide cost-effective assistance to the proposed Conservator and help to make the process cheaper, quicker, easier, and less stressful by walking you through the process step-by-step and representing you at the court hearing. An experienced attorney can also help you assess the likelihood of success so no money is wasted on a case that can't be won.

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