Conservatorship: Definition, Procedure, and Limitations
What is a Conservatorship?
A conservatorship grants legal authority to an individual over an incompetent or incapacitated adult’s affairs. The scope of the authority granted depends on the type of conservatorship. There are two primary categories of conservatorships, a Lanterman-Petris-Short (LPS) conservatorship and a probate (also known as limited) conservatorship, the latter of which is typically divided into two types of conservatorship: Conservators of the Estate and Conservators of the Person.
Conservators of the Estate grant legal authority over an individual’s fiscal affairs, while Conservators of the Person relate to the individual’s food, lodging, healthcare, clothing, and other such matters. A conservator is a guardian, and a conservatee is an individual under their care.
On US Legal Forms, you can access state-specific Conservatorship forms and form packages.
Guardianship vs. Conservatorship
Depending on the states, a guardianship can be related to the care of minors, or be interchangeable with the term conservatorship. While this ambiguity can cause some confusion, it might be helpful to note that the conservatorship meaning is also, essentially, legal guardianship for adults.
Generally speaking, the understanding of a guardian vs. conservator in most states can be broken down by considering a guardian to have the authority of an LPS conservatorship, where a conservatorship is considered a financial conservatorship, or conservatorship of the estate.
How to get Conservatorship?
Legal conservatorship is granted by the court and must also be ended or modified by the court. The court must be provided with adequate proof that the potential conservatee is incapable of caring for themselves, their finances, or their own well-being.
A conservatorship is most commonly used in cases of the elderly, where they are unable to make fit decisions or are incapacitated. In addition to this, they are also common when an individual did not create instructions, like a Health Care Directive, of what to do in the event of their incapacitation. Both of these situations are more likely when a Last Will and Testament is not present; courts often view conservatorships as an absolute last resort due to the power they hold and not necessarily with the consent of the potential conservatee.
It is beneficial, regardless of if the individual is coherent, to define conservatorship to them prior to petitioning the Superior Court’s Probate Division for it. This can help prevent legal battles and troubles in the future if all you have is their well-being in mind. A conservatorship attorney is appointed by the court to represent the potential conservatee after the petition has been reviewed and accepted for filing by the Probate Division. Prior to the hearing, the court typically appoints an examiner or visitor to perform an assessment on the potential conservatee’s capacity to make decisions and care for themselves.
During the hearing, the Judge can waive the necessity of the potential conservatee to be present, depending on the state of the individual. If the Judge decides it is for the best, the Judge may appoint an independent attorney to be the conservator, instead of those filing the petition. If the potential conservatee contests the conservatorship, they may do so at the hearing.
The most important of the conservatorship forms required is the petition itself. The Conservatorship Petition is required before any other process can begin. Within the petition, the proposed conservatee’s information must be entered, including the value of their estate, anticipated gross annual income of the estate, as well as their nationality, citizenship, and residence statuses.
Any form of conservatorship abuse is frowned upon greatly, even at the hint of it, as the conservatee is completely at the mercy of the conservator. This is especially true if the conservatorship is unfettered, such as in the case of an LPS conservatorship.
The Britney Spears conservatorship is an excellent case of conservatorship abuse. While many of the things she described in her case were appalling, let’s discuss the broader key indicators of conservatorship abuse first. Some of these key indicators include:
- Financial Mismanagement
- Overpaid Conservators
- Unnecessary Medical Treatments (and/or Forced)
- Physical Abuse
However, it’s important to note that not all of these behaviors are truly indicative on their own of abuse if the conservator has the well-being and long-term care of the conservatee in mind. For example, financial mismanagement may be perceived if the conservator keeps accounts and spending low; this may be to keep the finances within the ranges required to qualify for certain government benefits, such as food stamps and heating or rental assistance. Additionally, some medical treatments may appear unnecessary, yet are preventative regarding the unique situation of the conservatee, such as an elderly individual receiving preemptive arterial stents where plaque has already accumulated.
The Britney conservatorship, according to reports, was frothing with extreme micromanagement and abuse. When one looks at her case, it’s possible to clearly understand the dangers of an unfettered Power of Attorney, and especially that of a conservatorship gone horribly wrong.
The color of her cupboards, reproductive choices, relationships, friendships, and more were entirely managed by the conservatorship. It was also reported, albeit unconfirmed, that she was forced into being admitted to a mental health care facility for a time. The entire process was incredibly invasive, and as can be expected, severely emotionally and psychologically harmful.
When dealing with conservatorships, especially for elderly parents and grandparents, it’s important to ensure that the individual providing the care has honest and good intentions; and to check up on the conservatee regularly. That said, a conservatorship is a completely normal process, and sometimes required to render aid to those in need. Conservatorship abuse is rare, high-profile cases of abuse often draw such extreme cases into the limelight, highly stigmatizing a necessary legal process.
Modifying or Ending a Conservatorship
If a conservator is not fulfilling the duties required of them, it is possible for a complaint to be filed with the Guardianship Assistance Program, typically found within the Probate Division of the local Superior Court; unfortunately, the name of this program may vary from state-to-state. We recommend consulting with the local courthouse for more information.
If the conservatee, conservator, or third-party wish to end the conservatorship, they may file a Petition for Removal with the Probate Court. Additionally, if modification is sought, they may file a Petition to Modify. Every process from the creation to the modification or termination of a conservatorship is solely granted by the courts. While it may seem lengthy, cumbersome, and challenging, the process isn’t too complex. The courts must be involved as conservatorship grants direct control over another human being’s life, finances, and/or estate, it shouldn’t be taken lightly.
The Burden of Conservatorship
Under conservatorship, an individual is entirely under your care. In some cases, the conservatee is able to prepare their own meals and perform personal hygiene; in others, the individual is unable to handle even the most mundane of tasks.
This can be very taxing on the conservator, and with the added weight of managing their finances effectively, such as in the cases of an LPS conservatorship, it is very possible to face burnout. If you face burnout, or are stressed due to caring for an incapacitated or incompetent individual, don’t be ashamed to seek the help of a therapist or psychologist, as well as services designed to assist in the matters of caretaking. Caretaker burnout is common, and nothing to be ashamed of. It’s important to be sure that you’re up to the task and to take care of your own well-being throughout the process.
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