What is a conservator? A conservator is a legal term for an individual, appointed by the court, to oversee and manage the financial assets and affairs of an individual that is legally incapacitated to do so on their own, and has no alternative viable method of delegating these duties to another (either through a durable power of attorney, living trust or other means). Reasons for this may be age, whether the individual is a minor or elderly, or incompetence to understand or adequately manage financial affairs. Generally, these decisions include the overall care of the conservatee, namely medical care, residence and living, clothing, and food. The powers granted to a conservator may also be limited by law or at the discretion of the court, depending on the circumstances of each situation.
How is a conservatorship established? A conservatorship can be established by a relative, friend or public official. Such person may petition the court to be appointed conservator of an individual. The petitioner must demonstrate why the individual cannot manage his/her own financial affairs and make decisions regarding personal care. Once a petition is filed, a court will appoint an investigator to interview the prospective conservatee. The investigator then reports the findings and their opinion to the court on whether the conservatorship is justified or not. A hearing is set, where the conservatee must appear in court unless otherwise able to do so for medical reasons. Based on the petition, the judge will review the investigator’s report, we well as any other evidence proffered during the hearing. The judge then decides whether or not the conservatorship is appropriate, and what type of decision-making power will be authorized to the conservator.
What are the disadvantages of a conservatorship? A conservatorship is a court supervised proceeding, which means there may be substantial costs with the process to establishing. Some of these include legal costs, court filings, investigator fees, as well as conservator expenses. Additionally, a conservatee’s expenses, assets, and income will become a matter of public record, since this is a public proceeding. The conservatorship can be a complicated and time consuming approach to managing an individual’s financial matters, whereby a conservator must seek independent court approval for certain transactions, such as borrowing money, the sale of real property, and setting up a trust, to name a few. These court proceedings are formal and will require additional attorney’s fees, and often times creates delays in completing such transactions.
What are the advantages of a conservatorship? Although court supervision undoubtedly makes conservatorship more costly and tedious than other formal arrangements, it offers a greater amount of protection to the conservatee than any other management structure. For purposes of organization and accountability, the conservator must file with the court an inventory listing all property, as well an accounting of all transactions involving the conservatee’s assets. Another advantage of a conservatorship is that it provides an orderly method to assist incapacitated individuals who may be averse to consenting to such assistance.
Generally, the competent and reliable services of a conservator’s duties must be secured. Any fees charged for the performance of a conservator must be examined and approved by the court, and must be included within the required financial accountings of the conservatorship. Often times, to remove any conflict of interest, a court will appoint a conservator to manage only the financial affairs of the conservatee, and a guardian to manage only physical custody and care of the protected individual. However, in many instances, these separate functions are handled by a single conservator.
If you live in Kansas and have questions or concerns regarding your legal rights and/or how to establish a conservatorship, call McDowell Chartered legal services at 316-633-4322 for more information. Our expertise and knowledge with family law matters will ensure you questions and concerns are handled with the skill, care and diligence you deserve!