What’s A Conservatorship? A Comprehensive Look

If there’s someone in your life who can no longer independently handle their financial, medical or mental health needs, it may be time to consider conservatorship.

Although this form of legal guardianship has been around for decades, it has resurfaced as a controversial topic due to cases of high-profile celebrities being assigned conservators following their various personal struggles.

In this article, we’ll take a deep dive into how conservatorship works for both the conservator and the conservatee as well as how to start legal proceedings for this process.

What Does ‘Conservatorship’ Mean?

Conservatorship is a legal concept that allows a court-appointed person (the conservator) to manage the personal and financial affairs of a person with limited capacities (the conservatee). While conservatorship can range from control over limited responsibilities to full authority over the conservatee’s life, the purpose of this arrangement is to protect and fulfill the conservatee’s needs.

Conservatees are most commonly elderly adults, but they can also be people of all ages who have mental, emotional or physical impairments. In all cases, the conservator must make all decisions with the health and safety of the conservatee in mind, putting the protected person’s needs above their own personal interests.

Conservatorship Vs. Guardianship: What’s The Difference?

Although the terms “conservatorship” and “guardianship” are used interchangeably in some circles, they can have different meanings with regard to the law. Keep in mind that some states distinguish between the two terms, and some do not.

In states where the two concepts are defined separately, guardianship occurs when one or more court-appointed people have legal authority over the physical and medical care of the person with limited capacities. For example, in some states, guardians could make decisions about the protected person’s living and care arrangements but not about their investments or wills. Guardianship is generally used in relation to minors.

Conservators, on the other hand, are charged with managing the protected person’s property and financial affairs, possibly in addition to other aspects of their lives. If a court appoints someone to handle the conservatee’s financial dealings, they’re referred to as the “conservator of the estate.”

Who Qualifies For Conservatorship?

When debating whether an at-risk person would benefit from being managed under conservatorship, it’s important to consider the following questions.

• Is this person a danger to themselves or others?
• Is this person incapable of providing themselves with basic necessities, such as food, shelter and medical treatment?

If the answer to either of the above questions is “yes,” the next suggested step is to research how your state handles conservatorship proceedings. It’s important to remember that an officer or appointee of the court will ultimately decide whether someone is a candidate for conservatorship; the potential conservatee will also have the opportunity to present their own case on the record.

What Are The Types Of Conservatorship?

As mentioned above, the technical aspects of conservatorship vary from state to state. However, each type of conservatorship provides specific mandates about what the conservator’s legal responsibilities are to the conservatee and for how long these responsibilities last. Let’s take a look at the various types of conservatorship that can be assigned to a person in need.

Conservatorship By Duration

• Temporary: In some cases, conservatorship is defined by the length of the legal arrangement. Temporary conservatorship usually lasts for around 90 days, meaning that the conservator only holds authority for that limited amount of time and in specified conditions. This type of conservatorship is commonly used for time-sensitive medical emergencies, such as if the protected person falls into a coma.
• Full: Full conservatorship, also known as “permanent” or “plenary,” mandates that the circumstances of the legal agreement last for the duration of the conservatee’s life. This type of conservatorship is typically a last resort, but it’s necessary in cases where the conservatee will no longer be able to care for themselves.

Conservatorship By Type

• Limited Conservatorship: A limited conservatorship gives the conservator the decision-making authority over some aspects of the protected person’s life, but not all. The conservator’s powers are determined by both the conservatee’s abilities and inabilities. For example, if an elderly person can handle their daily physical care but not financial matters, such as long-term care insurance, then the conservator will be assigned to control only their capital and assets.
• General Conservatorship: With this type of conservatorship, the conservator has full control over the conservatee’s life decisions, including anything regarding their physical, financial and medical affairs. For example, if the victim of a debilitating car accident is unable to manage their physical or financial matters, a court would most likely appoint a general conservator.
• Mental Health Conservatorship: California’s Lanterman-Petris-Short Act created mental health conservatorship in the 1960s, which establishes authority over a protected person who’s suffering from a serious mental illness and can no longer care for themselves. Other states have their own variations of this type of conservatorship that provides a conservator for persons with defined psychiatric issues.
• Financial Conservatorship: Like limited conservatorship, this type of legal mandate only allows the conservator to manage the conservatee’s financial affairs. This kind of appointment is commonly used to protect elderly conservatees’ assets.

How Can I Apply For Conservatorship?

If you’ve gotten this far in this article and feel confident that someone in your life – a family member, a close friend, a spouse – qualifies for conservatorship, pay close attention to the following steps. Although the process may differ slightly based on the state the potential conservatee lives in, here are the general guidelines for obtaining conservatorship.

1. File A Court Petition

The first step is for the potential conservator to file a petition with the state court system to request a conservatorship appointment. The filing should include the specific type of conservatorship being petitioned for as well as paperwork on the person’s medical or mental health history. The court will then review the petition, and if it’s accepted, a court hearing will be set.

2. Assessment By Court-Appointed Professionals

Once the petition is accepted, the state system will appoint a qualified examiner to assess the potential conservatee regarding the capacities in question. For example, if the petition is for a financial conservatorship, the court-appointed examiner will review whether the conservatee has the decision-making abilities and mental capacity to handle their money.

At this stage, lawyers are retained or assigned to represent the presenting parties at the upcoming hearing to decide if conservatorship is granted.

3. A Court Hearing Determines The Conservatorship Ruling

During the hearing, the judge or magistrate overseeing the case will review all submitted paperwork and evidence about the potential conservatee’s mental and physical capacities.

Depending on the state, conservatees may or may not be required to attend the court proceedings. However, if the potential conservatee doesn’t agree with the petition actions, they’re allowed to present their challenge for why conservatorship shouldn’t be granted.

Once the judge or magistrate finishes deliberating, they will rule whether or not to appoint a conservator, and if they do, the person will be selected that day. In rare cases, multiple people may compete for the role of conservator, which will prompt the decision-maker to follow conservatorship preferences as set by state law. Most states give preference to the potential conservatee’s spouse, domestic partner, children or other blood relatives.

Is It Possible To Challenge Conservatorship?

The short answer to that question is “yes,” but it’s tricky. The simplest way to contest conservatorship is to file an objection to the original conservatorship petition in an attempt to block the arrangement from ever happening. You can also choose to file a competing petition for conservatorship.

If the conservatee or other party wants to end the conservatorship, they would simply submit a petition to terminate conservatorship to the conservatee’s local probate court. During the subsequent hearing, the judge or magistrate will determine whether the conservatee is now fit to manage their own affairs. If this petition is granted, the conservatorship is effectively over.

The Bottom Line: Respect The Individual’s Rights

Conservatorship can be a difficult bridge to cross with a struggling family member or friend, which is why it’s important to keep their best interests at heart. Think to yourself: If I was in their situation, would I want someone to take these same actions for me?

One way to avoid conservatorship is to predetermine durable powers of attorney sooner rather than later. That way, if you become unable to manage your own decisions, someone who you trust will be ready to step in and lend a hand.