What is a Conservatorship?
What is a conservatorship and when should you consider a conservatorship as part of your estate planning? Unfortunately many of us will face challenges as we age. This can include but is not limited to dementia, Alzheimer’s, serious illness and the erosion of mental capacity.
One must also consider the needs of those with developmental disabilities such as down syndrome, autism, cerebral palsy or epilepsy.
If a person still has the mental capacity (known legally as “competency”) to execute a legal document they would not need a conservatorship. They should simply implement and execute an Advance Health Care Directive and a Durable Power of Attorney for Health Care.
What happens if the measures contained within these powerful documents are required, but the patient does not have the legal capacity or competency to sign them? A conservatorship provides legal protections for those who have not executed healthcare directives or a power of attorney and have lost the ability to make legal and medical decisions for themselves.
A conservatorship may also be sought when a family member is concerned about improper external influences or the existence of fraudulent directives and/or powers of attorney.
How is a Conservatorship Established?
Through a conservatorship, the Court establishes an adult caretaker who has the authority to care for an individual and/or the individual’s estate. The conservator manages the specific tasks assigned within the scope of the conservatorship. This can be narrow or broad as the needs of the “conservatee” can include:
- Food, clothing and shelter
- Medical and Healthcare related decisions
- Personal care such as hair appointments and physical fitness or training
- Management of assets and expenses
- Creating budgets and protecting and managing investments, property and other interests
Your loved one may require a single conservator or a different type of conservator for each area based upon the skill and expertise and the complexities associated with the conservatee’s needs, assets and liabilities.
There are complex legal questions which must be addressed and supporting documents must be carefully crafted to protect the conservatee while providing the appropriate level of authority for the conservator. This is why it is important to work with the experienced estate planning attorneys at Allen Barron, Inc.
What is the Difference Between a Limited Conservatorship and a General Conservatorship?
A “general conservatorship” is usually established for those who have been seriously impaired due to an accident or sudden encompassing illness (such as a stroke) or for those who are advancing in years or whose physical and/or mental capacity is becoming more and more limited.
A “limited conservatorship” is usually established to protect those with developmental disabilities which begin prior to the conservatee’s 18th birthday. In a limited conservatorship, the conservatee may have a limited or even substantial capacity to manage many of their own decisions and affairs, but still require the supervision of a capable adult. This provides the conservatee with the highest degree of independence while maintaining an appropriate level of care and oversight.
A Conservatorship of the Person or a Conservatorship of the Estate?
What is the difference between a “conservatorship of the person” or a “conservatorship of the estate”? Having a conservatorship of the person provides the legal authority to make decisions on behalf of the conservatee. This usually includes issues related to food, clothing and shelter as well as healthcare and medical decisions.
A conservatorship of the estate has the legal authority and power to manage and make decisions regarding the financial interests of the conservatee. The conservator of the estate has the authority to marshall the assets of the conservatee, make or manage investments, access financial accounts and even pay the conservatee’s bills. In most cases, major decisions regarding the acquisition or sale of real property, gifting of substantial assets or seeking a loan continue to require the supervision and approval of the Court.
Do You Need to Learn More About or Consider a Conservatorship?
Are you concerned about your own health and mental capacity or the well being of someone you love? Are you concerned about providing for a child with developmental needs if you are no longer there or unable to care for them yourself? Do you think a family member or outside influence has gained inappropriate access to or control of your loved one’s interests?
The experienced estate planning attorneys at Allen Barron, Inc. have decades of legal experience in conservatorships and all aspects of trust and estate planning. Our clients appreciate the unique combination of integrated legal, tax and accounting services we bring to their estate planning and day-to-day needs.
Learn more about a conservatorship and how it fits into an overall estate plan.
The powers associated with a conservatorship are comprehensive. Serving as a conservator requires a complex skill set, often requiring the insights of experienced attorneys, estate planners, tax attorneys and planning and supporting accounting and reporting. Allen Barron, Inc. is uniquely positioned to provide these integrated services so that your loved one may have the legal, medical and financial protections they require.
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