LEGAL GUIDE
Written by attorney Lucas J. Foust | Sep 11, 2018

HOW DO I KEEP MY CHILD’S MONEY SAFE?

If your child has been in a serious automobile crash or other incident, he or she may receive funds to pay for the damage that was done as a result. It is vital that you make every effort to protect their funds. Under Montana law, the District Court may appoint a Conservator to protect your child’s assets. Below I have answered some of the most common questions I receive from parents of children who have received funds in a personal injury lawsuit. As always, the information below is merely educational and should not be considered legal advice.

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1. What is a conservator? Under Montana law, a conservator is a person appointed by the District Court to manage the affairs of a “protected person.” A person may be deemed a “protected person” due to their age (a minor) or disability. In the case of a minor, the Court must determine that a minor owns money or property that requires management or protection that cannot otherwise be provided, that a minor has or may have business affairs that may be jeopardized or prevented by the person’s minority, or funds that are needed for the person’s support and education. Finally, in the case of a minor, the Court must determine that protection is necessary or desirable. An individual may be considered a “protected person” and in need of a conservator even if that person is an adult. To determine that an individual is a “protected person” and requires a conservator, a Court must find that the person is unable to manage the person’s property and affairs effectively. A protected person may suffer from a mental illness, mental deficiency, physical illness or disability, advanced age, chronic use of drugs, chronic intoxication, confinement, detention by a foreign power or disappearance. Only after the District Court has been notified of the possible need for the appointment of a conservator, and a hearing has been held, can a conservator be appointed. 2. Why does a conservator need to be appointed at all? A conservator is appointed if it can be determined that a protected person’s property will be wasted or dissipated unless someone protects those resources. The Court appoints conservators to manage funds and other resources that are needed for the support, care and welfare of the “protected person” or those who are entitled to be supported by the “protected person.” An adult who is determined to be a “protected person” may have a responsibility to support his or her children, a disabled spouse, or even disabled parents who the “protected person” is obligated to support. The conservator appointed under these circumstances may be responsible for distributing funds for more than just one person. Even though the conservator may be fulfilling the “protected person’s” obligations to others, the fiduciary relationship and responsibility of the conservator is always the “protected person” he or she was appointed to protect. 3. What are my duties as a conservator? As a conservator, you are required to function as a fiduciary. What this means is that you are obligated to act, at all times, in the “protected person’s” best interest. Montana law, specifically Section 72-5-421, MCA, sets out a number of powers that are to be exercised by a conservator. This includes but is not limited to: enter into contracts; invest funds; create revocable or irrevocable trusts of property; purchase securities on behalf of the “protected person;” accept inheritance or other money on behalf of the “protected person.” However, as you can imagine, with great power comes great responsibility. In an effort to protect these resources, a conservator is required to provide the Court with an inventory of the “protected person’s” assets within 90 days of appointment. This inventory must be provided to any protected person over 14 years of age and able to comprehend these matters and to any parent or guardian of the protected person. Finally, a conservator will likely be required to provide the District Court annual statements concerning the status of the assets of the protected person. When a person is appointed as conservator, the Court will issue “Letters as evidence of transfer of assets.” These letters allow the conservator to show banks or other individuals involved in the transaction or transfer of property to be placed on notice of the conservator’s position. These documents are typically issued by the Clerk of District Court. 4. How much time is this going to take? It really depends on whether or not the circumstances of the protected person are complicated. If the protected person is a minor without any obligation to provide for the support of another, the obligations of serving as a conservator are not that onerous. With a minor as a protected person, the banking account along with a brief explanation of any funds that were removed by the conservator will typically suffice for the annual report. 5. Can someone besides a relative serve as conservator? Yes, someone other than a relative may serve as conservator. Montana law allows a public administrator to function as conservator when there is no other appropriate person. There are companies who make a business of serving as fiduciaries in all sorts of capacities, including as a conservator. Montana law under Section 72-5-410, MCA, lists who may be appointed as conservator and who takes priority in their position as conservator. 6. Do I have to go to court to be named as a conservator? Yes, Montana law requires that the Court not only receive a petition but the Court must also conduct a hearing. These hearing are typically straight forward and serve as a confirmation of the responsibility of the obligations of the conservator. Our community finds this relationship important enough to require that the potential conservator see the judge face to face. 7. What if someone wants to challenge my appointment as conservator? The priority for who may function as a conservator is set out under Section 72-5-410, MCA. However, priority is not a guarantee of appointment. This same statute allows a person to be passed over if the Court, with good cause, to appoint a person having less priority or no priority. 8. When does my appointment end? Your rights and obligations as a conservator will continue as long as you are capable of functioning as conservator or the protected person is either able to manage his or her own affairs or attains the age of adult, whichever comes first. 9. What decisions do I make as a conservator? As conservator, you will make decisions about the proper use of the resources available to the protected person. The list of what purpose may be used of these resources is listed under Section 72-5-428, MCA. The purposes include support, education, or care of the protected person upon the recommendation of the parent. In the event there is any question as to whether a transaction is appropriate, the statute above includes a list of criteria for considering whether the transaction is appropriate. Buying a new car for the minor may not fit the criteria if it depletes the resources. Depending on the amount of money available to the minor, a $2,000 car will likely do the trick. 10. Can someone replace me as conservator if I am unable to continue? Yes, someone can replace you if you, for whatever reason, are unable to serve as conservator. The appointment of a new conservator will require the same steps as the original appointment. You will need to file notice to the Court of the circumstances surrounding your departure and petition the Court for appointment of the new party. The Court will apply the same criteria used when you were appointed.

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