What Is Conservatorship? A conservatorship is a legal proceeding whereby a person (usually a family member but sometimes a private or corporate professional) is appointed by the court to make decisions, provide for health and personal care, and manage the financial affairs of an incapacitated person or a person found to be unable to resist fraud, duress or undue influence. For example, if an individual has a stroke or other incident that leaves him physically and/or mentally impaired, the day inevitably arrives when a decision is needed to move forward with appropriate health care or a signature is required to pay a bill, sign a contract, or otherwise manage personal property. For those who have not planned ahead, a court must get involved in order to determine who will act as conservator in the stead of an incapacitated individual.

Why Is Conservatorship Necessary? When a person is unable to care for himself competently and has not made adequate prior arrangements (such as creating durable powers of attorney, advance health care directives, and trusts), the court steps in and appoints a conservator in order to make decisions for and handle that person's affairs, as well as to protect that person and his interests. An individual who requires a conservator is vulnerable, by virtue of his state of incapacity, to being treated badly or used for another's advantage. The court limits this vulnerability in a conservatorship by naming a conservator who must report regularly to the court regarding the welfare and/or assets of an incapacitated individual.

What Are the Drawbacks of Conservatorship? Not only does conservatorship open an incapacitated individual's personal records to the public, but court costs, legal bills, fees and bonds can diminish the value of his assets. Additionally, if a person has not planned ahead, the court can and will intervene in his affairs, making financial decisions for him and looking after his personal health and well-being. If the court determines a conservator is needed, it may name a family member the conservatee would not have chosen or even an outside person or institution. The decision is entirely up to the court.

How Can I Avoid Conservatorship of My Person and/or Estate? Planning ahead is the answer. It is important to have an advance health care directive with a durable power of attorney for health care to make certain your wishes are known and carried out in a situation where you become unable to make health care or other personal decisions for yourself. As regards your estate, though some people rely solely on a durable power of attorney for management of property and personal affairs, more and more frequently we are seeing funded revocable living trusts, which give the trustee(s) a legal right to manage assets. This makes dealing with banks and financial institutions a lot easier, as some institutions are reluctant to take powers of attorney or will require institutional forms in addition to a durable power of attorney.

What If My Relative Is Incapacitated? In the event your incapacitated relative has not planned ahead, you may apply to become the conservator of your relative's person and/or estate. An experienced attorney will help you file necessary paperwork with the court to open a conservatorship if one is deemed necessary. Of course, it will still be the court's decision, (taking into consideration the wishes of the potential conservatee, your ability to be bonded, and any other potential conflicts), whether or not to appoint you conservator.