WHAT IS A CONSERVATORSHIP?

A Conservatorship is a court controlled legal relationship between a conservatee, the person being conserved because he or she can no longer care for her person (health) and/or her finances and a conservator of the person, of the estate or both, under the guidance of an attorney (for the conservator) and the state and local rules of a Probate Department in a State Superior Court. The attorney who brings the petition to Court represents the conservator.

Loss of control can be very upsetting to both the conservatee and her family and the costs of a conservatorship are usually great. Among other expenses, a conservator of the estate is paid an hourly rate (or a percentage of the year’s value of the estate) to manage the conservatee’s financial affairs: pay the bills, do banking, handle taxes, take care of property, insurance and taxes. A conservator of the person may make medical appointments and arrange for transportation to appointments; see to necessary home care and coverage, including meals. Sometimes someone needs only a conservator of the person or a conservator of the estate. The same person may be both conservator of the estate and conservator of the person.

Sometimes a family member, a friend or a partner petitions the Court and is appointed as conservator; often, however, if there is no such person available for these numerous tasks, a court may determine that a professional conservator is needed. Sometimes, if families disagree over who should be appointed, the Court will appoint a professional conservator, also called a professional fiduciary. Even if a family member is appointed as a conservator, an attorney for the conservator must still be hired to guide the conservator and report to the court at regular intervals, at an attorney’s hourly rate. When the conservatee is unable to speak for him or herself, the Court will also appoint an attorney for the conservatee, at even more expense to the estate.

The way to avoid this cost and the possible handing over of control of one’s person and assets to a court-appointed conservator and an attorney is very simple: execute a Durable Power of Attorney AND an Advance Health Care Directive before any incapacity sets in.

Even if someone is presently healthy and has capacity to do all these things, something as unexpected (and ordinary) as a fall, a sudden illness or a car accident could render a person incapacitated. Without having appointed an attorney in fact for health and for finances, in writing, while still having legal capacity, that person may well end up under a state controlled conservatorship.