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What is a conservator? – The role of a professional fiduciary.

By Courtney DeSoto on Oct 02, 2014 at 02:57 PM

A conservator is someone appointed by the Court to look after the affairs of an incapacitated elder or dependant adult. This is done in the context of a conservatorship proceeding in local probate court. A conservatorship can be of the Person (health care) and/or the Estate (finances). There are three different types of conservatorships: 

What is a conservator? � The role of a professional fiduciary.

1. Limited Conservatorship - for the developmentally disabled.
2. Lanterman-Petris Short (LPS) Conservatorship - for those with a mental health diagnosis. Petition must be initiated by the County Mental Health Department. 
3. Probate Conservatorship A conservatorship of the Person means the conservator can be given the authority to direct the conservatee’s medical care, hire and fire caregivers, determine the conservatee’s residence and control personal contacts. Generally, a conservatorship requires a physician to sign a declaration indicating the elder no longer has the capacity to make their own decisions. 

Other rights affected are the conservatee’s ability to vote, the ability to drive and make their own exclusive medical decisions. A conservator can also be given additional authorities when the incapacitated person suffers from dementia. These special powers allow the conservator to place the conservatee in a secured-perimeter facility, if appropriate, and to administer psychotropic medication for dementia. Conservators do not automatically have these powers and require special Court approval. A conservatorship of the Estate allows the conservator to control the conservatee’s bank accounts/investments, pay their bills, buy/sell property, rent properties belonging to the incapacitated person, be payee for Social Security and other income and must provide biannual accountings to the Court. 

A conservator can be a just about anyone including a relative, friend or in some cases the Court appoints a skilled professional fiduciary. A fiduciary is a person who assumes responsibility for a position of trust. Fiduciaries can serve by court appointment or by private agreement. Court appointed fiduciaries are known as guardians or conservators. In addition, personal representatives of estates are appointed by the Court. Fiduciaries serve by agreement as daily money managers, trustees, representative payees, or as agents under financial or health care powers of attorney. A fiduciary can be a licensed individual or a corporate entity like a bank’s trust department. 

Professional fiduciaries are growing in popularity to assist in complicated or volatile cases and often used when the Court feels that a neutral third party is best. It is important to note that a conservatorship is extremely restricting, limits the conservatee’s liberties and can often be costly. It is almost always best to start with the least restrictive alternative, allowing the older adult to retain as much independence and decision-making authority as possible. 

Fiduciaries can also serve as Agent under a Power of Attorney or Health Care Surrogate document, or who serve as Trustee under a trust. These arrangements must be made in writing while an individual has the legal capacity to make such an appointment, even if the services of the fiduciary will not begin until the individual lacks capacity. There are restrictions (which vary by state) regarding who may serve as a professional Agent or Trustee. The responsibility of the fiduciary in these situations is to carry out the instructions in any written documents (e.g., trust, POA, Advance Health Care Directive, etc.) or, where appropriate and allowed by law, to use substituted judgment or the best interest standards to handle the incapacitated person’s affairs. 

The best way to ensure that your affairs will be handled the way you prefer is to work with an attorney to draft appropriate documents and then keep them up to date. In the event you find yourself or a loved one in a situation where this hasn’t been done or where those named in the documents are unable or unwilling to serve, call us …we can help. We can stand in the shoes of your loved one and 
assist in ascertaining and carrying out their wishes.