A conservatorship is a protective proceeding to protect or “conserve” a person’s money and property if said person is unable to manage their own assets and those assets are at risk of waste or dissipation. A person might be unable to manage their own finances if they are an incapacitated adult or a minor child.
The most common reasons a conservatorship is needed are:
For a minor, a conservatorship may be required if they receive an inheritance or a settlement from a personal injury case.
For an adult, a conservatorship may be needed if they are no longer able to make reasonable decisions for their financial affairs due to physical or mental decline and impairment.
How Is a Conservator Appointed?
For any conservatorship you must to file a petition with the Superior Court requesting to be appointed as the conservator. The petition must tell the Court who needs a conservator (the proposed protected person), why the appointment is necessary, what money or property is at risk and who is requesting to be appointed.
After the filing of the petition, the Court will set a date and time for a hearing.
Just like any other court case, persons who may be affected by the appointment or who may have priority for appointment are entitled to notice of the legal action.
What constitutes “notice”?
A person entitled to notice must receive a copy of the both Notice of Hearing and the Petition that was filed. For a case involving a minor, both parents of the minor must be notified of the hearing. If the minor is over the age of fourteen, he or she must also be provided with notice of the hearing.
What will happen at the hearing?
The Court will take testimony about why the conservatorship is necessary, why the nominated conservator is the right person to serve, and what the nominated conservator intends to do with the minor’s funds/assets until the minor reaches the age of majority.
What happens after the hearing?
If a conservator is appointed, the court will sign its order approving the appointment. Then the conservator must get their letters issued from the Clerk of the Court.
There are many requirements for a conservator, but some may be waived in the case of a minor.
After the filing of the petition, the Court will set a date and time for the hearing.
As discussed above, this is a lawsuit and persons who may be affected by the appointment or who may have priority for appointment are entitled to notice of the legal action.
Who should get “notice”?
The notice that is required is the same as in a minor conservatorship; a copy of both the Notice of Hearing and the Petition that was filed. The proposed protected person should be provided with notice along with their spouse, parents and adult children. If no spouse, parent or adult child is still living then the nearest relative should be provided with notice.
What will happen after the petition is filed?
An attorney will be appointed to represent the proposed protected person. A Court Investigator may be appointed to write a report to the Court on the need for a conservator. The person who wants to be the conservator must complete the mandatory court trainings so that they understand their duties and responsibilities. The proposed conservator will also need to obtain a bond for any funds that will be available for the conservator to use.
What will happen at the hearing?
A hearing will be held during which evidence and testimony will be presented to prove that the proposed protected person can no longer manage his or her finances responsibly.
What happens if the Court decides to approve the conservatorships?
First congratulations on making it through the process. At the end of the hearing the Court will issue the Order Appointing Conservator. The appointed conservator will take the Order and their Letters accepting the conservatorship to the Clerk of the Court to be issued. WARNING– if the letters are not issued the conservator has no authority.
What Are a Conservator’s Duties?
The conservator has ninety (90) days from the date of appointment to file an inventory of the protected person’s funds and assets. A complete and accurate accounting of the protected person’s assets must be filed with the Court annually. The Court will set a due date and accounting period as part of the appointment. This accounting must report all financial transactions that took place within the accounting period and it must balance to the penny. You can hire an accountant to assist you in preparing it. The court has its own accounting forms conservator’s must use and they can be confusing.
The conservator has a duty to act as a reasonable and prudent person. The conservator pays the bills for the protected person such as, medical, educational and housing expenses.
The assets of the protected person must be used by the conservator solely for the benefit of the protected person. The conservator can, upon Court approval, be reimbursed from the protected person’s money for administrative expenses and reasonable attorney’s fees. However, the protected person’s assets cannot be used for the conservator’s own personal benefit or gain.
This is a lot to take in. Being a conservator is so much work. We can help guide you through the process and assist in administering the conservatorship. We have represented many conservators and we get everyone through it. To get started give us a call at (480) 348-1590 or make an appointment online.
Written by Jennifer Kupiszewski, Esq.
The lawyer disclaimer: We hope you find this informative, but it is not legal advice. You should consult your own attorney, who can review your specific situation and account for variations in state law and local practices. Laws and regulations are constantly changing, so the longer it has been since this was written, the greater the likelihood that the information might be out of date.
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