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Modern Estate Planning Blog

Elder Law & Special Needs Planning

Trust Lawyer in Fair Oaks Answers, “What is a Conservatorship or an Adult Guardian?”

June 20, 2012

The idea of conservatorships really came before the mainstream population a few years back when pop idol Britney Spears seemed to have an emotional breakdown right in front of the public eye. At that time, her father was named as her conservator. The term sounds like a babysitter, at best, or like a harsh authoritarian with financial power, at worst. So, what is a conservatorship, really?

A conservatorship in Sacramento or El Dorado County is ordered by the courts in cases where an individual is unable to make his or her own decisions—typically as they relate to finances and healthcare. When someone has been found unsuitable for such decisions, someone else is named to make them. This person is called the conservator. Someone who has been appointed to take care of financial matters, is called a “conservator of the estate,” and someone appointed to make personal and medical decisions is called a “conservator of the person.” (In some states, the person who makes personal decisions for someone who is incapacitated is referred to as the “guardian.”) One person may fill both roles.

Situations That Warrant a Conservatorship

Conservators are granted to people who have been found to be somehow “incapacitated.”  In some states, this is also referred to as being a “protected person.”  To fit the criteria, the person in question will generally need to have a mental impairment to the point that he or she cannot meet his or her own health and safety needs and/or be able to manage financial affairs well enough to support oneself or legal dependents.

Again, the words mental impairment are key. Simply making bad choices or using bad judgment is not enough to warrant a conservatorship here in Sacramento.  The final determination on whether or not a person fits the requirements is made only by a judge. The process can be started, however when a petition is filed with the courts asking for the appointment of a conservator. The request can be made by just about anyone who has an interest in your wellbeing, including yourself.

It is also permissible for any interested party to object to the need for a conservator or to question the choice of people considered for the role. It is usually the person’s spouse or child that is appointed.

Choosing Your Own Conservator

While the role of conservator is appointed by a judge according to specific laws, that doesn’t mean that an individual has no say in the matter of who will be in charge of the finances, medical, or personal care. The best course of action to ensure your wishes are followed is to work with an estate planning lawyer in advance to create a powers of attorney and medical directives. If you have these in place, you don’t need to go through the conservatorship process, as the person named within will already have been given the responsibility.

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