Powers and Duties of a Conservator in Alabama
How to successful fulfill your duties when appointed someone's conservator
Pay reasonable charges for support, maintenance, and education of the protected personThe conservator has the duty to pay reasonable charges on behalf of the protected person. All documents signed by the conservator on behalf of the protected person should indicate that relationship, to avoid incurring personal liability. This means that the conservator must first make sure that the service has been rendered, and that the charge is a reasonable one.
The conservator must maintain an accurate record of services he or she has performed, the time spent, and the expenses incurred in performing duties as conservator. A conservator may charge a reasonable fee for the provision of necessary conservatorship services to the protected person.
For a person residing at home reasonable charges might include: payment of mortgage, rent, insurance, taxes, utilities, maintenance of the home, needed in-home services of the person, medical, clothing, and other personal items.
For a person residing in a facility, reasonable charges may include: reviewing the level of care assessment (case-mix) of the protected person to be sure the facility’s charge is correct for the level of care required; ensuring that the protected person has sufficient funds on hand for personal spending, and reviewing and monitoring the medical and personal services provided.
Pay all just and lawful debts of the protected person, pay reasonable charges for support, maintenanThe conservator of the estate must pay all of the protected person’s debts as they become due. The conservator is also responsible for filing income tax returns on behalf of the protected person.
Possess and manage the estate, collect all debts and claimsOne of the conservator’s first duties is to take control of (possess) the protected person’s property. This involves conducting a comprehensive search for all assets the protected person owns, and arranging for transfer of title or possession to the conservatorship. The conservator shall investigate and determine all debts and claims in order to pursue collection. If there is a need to protect assets, the conservator may, with the consent of the court, institute lawsuits and act on behalf of the protected person. Also, the conservator must invest all funds, preserving, protecting, and conserving assets and producing as much income as possible with minimal risk to the principle asset.
The best source of information of what the protected person owns may be the protected person. Review with the protected person the financial records, such as current bank and broker statements, income tax returns, account ledgers, deeds and insurance policies. The conservator has the right to enter the protected person’s safe deposit box and remove the contents, upon presenting a certified copy of his or her Letters of Conservatorship to the financial institution. If the box is rented with another person, that other person should be present when the box is opened.
What are the Conservator’s duties at the time of appointment?At the time of appointment the conservator of the estate must complete the following:
• Prepare an inventory of all property; being sure to check for all bank accounts, stocks, bonds, and real estate in the protected person's name.
• File a change of address with the post office to ensure all future mail is forwarded to the conservator to aid in locating assets (1099's issued at year end can often help locate additional assets). Personal mail, however, must be returned to the protected person unopened.
• Take control of all property and assets, and make sure they are adequately protected against loss.
• Keep thorough records.
• Determine and collect all income.
• Pay the protected person's debts as they become due.
• Invest the property in investments suitable to the protected person's circumstances.
• Determine whether or not the protected person must file and pay income tax returns.
How does a Conservator manage insurance?The conservator must consider the following when inspecting the protected person's insurance:
a. Real property insurance. Is the property adequately insured/replacement value? Are the premiums current?
b. Household insurance. Does the policy contain adequate coverage?
c. Health insurance. Is the policy cost effective? Is there duplicate coverage with multiple policies? Is there Medicare A & B coverage?
d. Life insurance. Locate any and all policies. Are premiums current? Is the insurance necessary?
How does a Conservator manage real estate?Care and maintenance of real estate. The conservator of the estate must arrange for the care and maintenance of the property such as, cutting grass, snow shoveling, trash removal, furnace inspection, or adequate heating fuel. When the conservator is appointed he or she must determine the following:
• Who has access to the property? Should locks be changed?
• Is the property insured? Have the insurance premiums been paid?
• Are the real estate taxes current?
a. Sale of real estate. If the property the conservator wants to sell is the principal residence of the protected person, it must be determined that the protected person will be unable to return to independent living. Conservators should consult with their attorney on such matters. Keep in mind the following requirements:
• Property cannot be given away.
• Secure a doctor's statement to determine the protected person's physical health and whether or not the person is able to live independently or with assistance at home.
• Petition the court for permission to sell. The court may choose an appraiser to appraise the property. Appraisals are completed after the hearing.
• Relatives may be given a chance to purchase at appraised value prior to the general public.
• Property cannot be sold for less than the appraised price without court approval.
Prior to closing, have the court issue an order directing sale, order confirming sale, and current Letters of Conservatorship. The conservator's deed must be prepared. Often the closing company wants to see these documents prior to closing.
Does the Conservator of the estate ever have to go to court?A conservator of the estate has the authority to complete most of these tasks, but some, such as the sale of real estate, require additional authorization from the court. The conservator should obtain competent legal and financial advice, particularly in the management of large asset situations, contested, or controversial situations.
What is the inventory?An inventory of all assets owned by the protected person at the time of the conservator’s appointment must be filed with the court. The inventory provides several pieces of information to the court:
• It serves as the initial listing of property for which the conservator will be held accountable.
• It assists the court in determining the amount of the conservator’s bond.
• It advises the court of the extent of the protected person’s estate, and indirectly, of the income likely to be received for the protected person’s support.
The inventory of the property includes:
• Real estate
• Furniture and household goods
• Wearing apparel
• Corporation stocks
• Bank Accounts, Certificates of Deposit, Receivables
• All other personal property
The conservator determines the fair market value of all assets listed in the inventory.
The conservator’s attorney should assist in preparing the final draft of the inventory and filing it with the court. If the conservator fails to file an inventory, the court may issue a citation, and may remove him or her as conservator.
What financial records is the Conservator responsible for keepingThe conservator is responsible for keeping accurate financial records at all times. In order to do this the following steps are recommended:
• Establish a separate conservatorship bank account to receive and disburse all deposits and make all payments. Make all such disbursements by check, not cash, so an accurate record will remain.
• Maintain a complete and accurate ledger which shows all funds going through the conservatorship account. Keep all receipts of expenses paid for the ward.
• Seek approval from the court before making large purchases.
When does Guardianship or Conservatorship terminate?A guardianship or conservatorship terminates upon the death of the ward/protected person, upon a determination of incapacity of the guardian/conservator, upon removal or resignation of the guardian/conservator, or upon restoration of capacity of the ward/protected person.
Death of the Ward or Protected PersonWhen a ward or protected person dies the guardian or conservator no longer has authority to act on their behalf. However, it does not relieve the conservator from the liability of accounting for their actions, nor does it relieve him or her of the obligation to file a final account with the court of the disposition of the assets of the protected person’s estate. The conservator must file a final accounting and ask the court to set the account for hearing and discharge. Any funds remaining in the conservatorship account should be paid into an estate account opened for the estate of the ward, after court permission is granted to do so.
What are Conflicts of Interest?A conflict of interest happens when your personal or financial interests as conservator go against those of the ward or where your actions appear to be self-serving (for your own benefit). For example, it would be a conflict of interest for a conservator to get a loan from or buy property belonging to the ward’s estate.
Whenever you think you might have a conflict of interest, even if you are not sure, report it to the court. Just because you may have a conflict of interest does not mean you cannot serve as conservator, as long as you keep the court informed.