» Conservatorship
When do I need a Conservatorship for a minor?
A minor Conservatorship is necessary if a child inherits money. Another example of a situation in which a minor Conservatorship is needed is when a child is injured and is expected to received money from a settlement or trial. In that case, the Conservatorship is necessary for a parent or legal guardian to approve a settlement on behalf of the child. Finally, a Conservator might be necessary if a child is an owner of real property that is being sold. If there is a single transaction, however, the Probate Court might issue a protective order rather than requiring a full Conservatorship.
I am conservator for my mother. She owns a house but is in a nursing home. It makes sense for me to purchase the house. Can I do so?
You can purchase the house as long as it is a fair transaction. You should have the house appraised by an independent appraiser to determine its fair market value. You should then petition the court to ask for approval to purchase the house for fair market value. This will provide other interested parties to raise an objection to the purchase. If there are no objections and the court determines that the sale would be in your mother’s best interest, you can obtain a court order approving the sale to you. Absent court approval, this could look like conflict of interest.
I need to sell my father’s house since he is in a nursing home? How do I do that?
You need to obtain authority to sell your father’s house by filing for conservatorship in the probate court in the county in which he resides. The Letters of Conservatorship from the court will give you the authority to sell any real property to pay for his nursing care or if the carrying costs of the house are depleting the estate. However, even once you have been appointed as conservator, some probate courts will require you to obtain a specific order providing approval for the sale of the ward’s property. You will need to check your Letters of Conservatorship to see if this additional requirement is listed.
Who can be appointed as a conservator?
The court may appoint any interested person to be a conservator. However, the probate court will give priority to a person nominated by the individual in a power of attorney. If no one is nominated, the next priority is the spouse and then the adult children of the individual. Other parties that might have priority are a relative of the individual or a caregiver. Even though an individual might have priority for appointment as a Conservator, the Court must still find that the individual is suitable to act in this capacity.
My mother has a power of attorney; do I still need a conservatorship?
Typically, a power of attorney provides sufficient authority to an agent to make legal and financial decisions on behalf of the principal. However, sometimes a conservatorship is still necessary in certain circumstances. Sometimes, the power of attorney is defective or the agent named in the power of attorney has died. In other cases, a son or daughter might be named in a power of attorney but that individual is not acting in the best interests of the parent or may be self-dealing. In those circumstances, the court will have the discretion to revoke the power of attorney and appoint a different conservator.
What is the difference between a guardian and conservator?
A guardian is a person who makes medical and placement decisions on behalf of the ward. A conservator makes financial and legal decisions.
Where should I file a Petition for Conservatorship?
You should file a Petition for Conservatorship in the county in which the alleged incapacitated person resides.
What does a conservator do?
A conservator is a family member, friend, professional fiduciary or other interested person who is appointed by the probate court to make financial and legal decisions for an incapacitated person. The conservator has to act in the best interests of the ward at all times. A conservator can be the representative payee for an individual's social security or disability benefits, can obtain authority over bank accounts and pay bills for the individual.
