What Should I Know About Conservatorships?

Orange City Iowa Estate Planning

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Eight years ago America’s baby boomers, people born between 1946 and 1964, began to retire. At nearly 75 million, they represent one of America’s largest elder care challenges. Millennials, now in their 30s, will need to begin thinking about how to look after their parents as medical, financial and mental health needs arise.

A conservatorship—also sometimes known as a “living probate”—is a type of financial guardianship for an adult, also called a “ward”. The conservator has legal authority over certain aspects of the ward’s life, says KAKE.com’s recent article, “What is a Conservatorship and How Does It Work?”  A conservatorship is granted when the ward no longer has the capacity to make decisions on his or her own behalf. These cases are almost always dealing with judgments based on mental incapacity.

The general test for a conservatorship is: (i) whether the person is capable of knowing and understanding his or her actions; (ii) whether he or she is capable of providing for their basic needs, such as food, sanitation, and shelter; and (iii) whether he or she could be considered a danger to themself.

Although the specifics of a conservatorship hearing vary across jurisdictions, a conservatorship must be granted by an officer or appointee of the court. Medical paperwork is typically required before a judge will grant a conservatorship. However, the potential ward must have an opportunity to be heard by the court and to present his or her own case as to why a conservatorship shouldn’t be granted. In addition, a person has the right to challenge a conservatorship in court if he or she disagrees with the outcome because a conservatorship means taking many aspects of freedom from an adult. This is not taken lightly by the courts.

There are several types of conservatorships. The most common are financial, physical, full, and limited. A conservatorship is built around the needs of the ward, and the judge will typically consult with medical staff and social workers. A conservatorship is based on what the court believes will best keep the ward healthy and safe.

To make certain that a conservator doesn’t use the ward’s assets for his own gain, conservators must report to the court that appointed them. They’re required to keep records of every decision they make on behalf of the ward and must periodically present this information to the court. However, depending on the state, larger or more permanent decisions may require a court order such as the decision to place the ward in an assisted-living facility.

Conservators are entitled to receive pay, and they should thoroughly document hours because they must present the work hours to the court in order to receive compensation. It’s not uncommon for those who hold conservatorships over friends or family members to decline payment.

Conservatorships are controlled by state laws. Consult with an elder law attorney about the details how it might apply to your situation.

Reference: KAKE.com (December 11, 2019) “What is a Conservatorship and How Does It Work?”

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