Conservatorship

When the probate court determines that an adult is incapable of managing his or her own affairs, or unable to care for himself or herself, the court can appoint a conservator to manage his or her financial and/or personal affairs, subject to oversight by the court.

Conservators of the Person and Estate

Depending on the individual’s specific needs, two different types of conservators can be appointed.

A conservator of the person is appointed to supervise personal affairs such as medical needs, food, clothing, personal hygiene, and housing, as well as protection from physical abuse. This type of conservator has responsibility for the general custody of the individual, including “care, comfort, and maintenance” of the individual and his or her personal effects.

A conservator of the estate is appointed to supervise an individual’s financial affairs. This type of conservator is charged with managing the individual’s assets in such a way that the rights and interests of the ward are protected.

Should an incapable person need both types of conservators, one individual may serve in both capacities, or two separate individuals may perform these two roles. A conservator of the estate and or of the person may be an individual, a legally authorized municipal or state official, or a private or non-profit corporation. However, hospitals and nursing homes are not permitted to serve in either capacity, and banks are not permitted to serve as a conservator of the person.
Should a mentally retarded adult be in need of oversight, it is appropriate for a conservator of the estate to manage his or her financial affairs, while a guardian oversees his or her personal affairs.

Future, Temporary, and Voluntary Conservatorships

While a conservator is usually appointed at the time a need arises, it is possible to name a future conservator through the execution of a formal, legal document.

A conservatorship can be temporary. In this event, the temporary conservatorship may last no longer than 30 days, unless an application for involuntary conservatorship is filed while the temporary conservatorship is in effect.

Even a person who is not legally incapable may want another person to manage his or her affairs. Subject to probate court supervision, a voluntary conservator of the person and/or estate may be appointed by the court.

The Involuntary Conservatorship

An involuntary conservator of the person or estate is appointed for an individual by the probate court pursuant to the filing of an application for appointment of conservator by a “petitioner.” A hearing is held within 30 days, at which time the petitioner is required to present medical evidence about the individual’s – or “respondent’s” – incapacity from one or more physicians who have examined the respondent within 30 days of the hearing, as well as any other evidence the court may deem relevant.

The court must determine that the respondent is incapacitated by “clear and convincing” evidence. The court also determines who shall be the conservator of the estate/person. The conservator is determined by considering the best interests of the respondent.

Decisions resulting from such proceedings may be appealed to the superior court within 30 days of the issuance of a probate court decree.

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