When a person has become incapacitated or otherwise unable to tend to his financial affairs, another individual may petition the court for conservatorship over that person. While the process is determined by each state, the potential conservator must usually complete court forms and provide evidence that the conservatorship is necessary.
Types of Conservators
Conservatorships are based on each state’s probate laws. A general conservator helps take care of a person’s finances and is usually appointed for elderly individuals. A limited conservator provides some assistance to individuals with mild disabilities. A Lanterman-Petris-Short conservator is reserved for individuals with serious mental health issues. Also, there might be one conservator over the person to help provide for his basic needs and another over the estate to pay bills and manage income.
While any interested party can petition the court for conservatorship, the court has a hierarchy it uses. First priority goes to the spouse, followed by an adult child. If neither of these categories are in the mix, the next preference goes to the person’s parent, then sibling. The last two preferences are for any other interested party and a public guardian, such as a professional conservator.
Before a person can be appointed as a conservator, she must complete a variety of documents and file them with the court. These forms include a petition for appointment of the conservator, a notice of hearing and a request for a court investigator. A licensed psychologist or physician might also have to sign off on the need for a conservator. These documents are necessary to prove why you are seeking a conservatorship and the necessity for the court to step in. File the documents with the court clerk and pay any applicable fee. The court may also require you to pay a bond that is a percentage of the value of the conservatee’s assets in his estate.
When the forms are filed, family members must be served notice of the conservatorship request. The court clerk will notify you of the day of the hearing for conservatorship. A court investigator reviews the documents that you have submitted and provides an objective opinion to the court. Witnesses can provide sworn testimony at the hearing. The conservatee may oppose the appointment and may provide a defense about why he does not need a conservatorship if he is physically and mentally capable. If the judge rules in favor of the proposed conservator, the judge will provide the conservator with documents giving her the legal authority to act in this capacity.
Due to the expense of litigation and the potential need to hire a lawyer to file the petition and prove the case in court, alternatives might be considered. A revocable living trust lets the grantor keep assets safe and appoint a trustee of his choice to manage the assets. A durable power of attorney lets the grantor choose who he wants to manage his finances whether or not he is incapacitated. (See References 5). A durable power of attorney for health care can make medical decisions on behalf of the principal. (See References 5). An estate planning attorney can assist with completing these legal arrangements.
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