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Conservatorships

What is a Conservatorship?

If you become incapacitated during your lifetime and are unable to manage your financial and/or personal affairs (or forget where your parked your car even though it’s in the driveway), the court can step in to appoint someone to take control of all of your assets and personal affairs. The person appointed by the court is called the conservator. The incapacitated person is called the conservatee.  This process is called a probate conservatorship.

If a court appoints someone to take care of only financial matters, that person is usually referred to as “conservator of the estate.” On the other hand, if the court appoints someone to make medical and personal decisions they are usually called “conservator of the person.” Often times, the person appointed to these positions is a relative of the incapacitated person, however, in certain cases it will be a court appointed private fiduciary.

The court appointed conservator must file strict annual accountings with the probate court and those accountings must account for every last penny. As you can imagine, this entire process is expensive, time consuming, and for the incapacitated person it can often be humiliating.

Does Joint Tenancy avoid Conservatorship?

No.  Each joint tenant is required to sign documents on all major transactions involving joint property.  If one of the owners is mentally incapacitated and incapable of handling financial matters, everything will have to wait until the probate court takes control.  The court, in effect, becomes a joint owner and will continue to have a voice in managing the property until the disabled owner either recovers or dies.

Does having a Will avoid Conservatorship?

No. A will only takes effect upon your death. It has no control over events during your life.

Does a Revocable Living Trust avoid Conservatorship?

Yes. One of the most important benefits of a living trust is that it is designed to protect you while you’re alive. A major part of every well drafted living trust is a section setting forth your instructions in the event you should become legally incapacitated. A living trust allows you to plan in advance for the event of illness, disability and even old age. The successor trustees you choose are bound by law to follow your instructions during these difficult times. With a living trust, there will be no need for expensive “help” from the probate court, probate lawyers or conservators.

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