What If I Need A Conservatorship Right Away? Q & A
Jan. 23, 2020
My head is spinning. My 87-year-old father has rapidly declined in his mental and physical functioning. I spoke to my neighbor who has told me it is probably too late to have a Power Of Attorney set-up because my father no longer has the ability to understand what he is signing. I understand there is something called a Conservatorship where someone else can act for him so long as it is court-sanctioned.
Can a Conservatorship be set-up quickly? And if so, how does this work?
In Conservatorships cases, when there is deemed an urgent need to open up a conservatorship, and the process must happen quickly, the court may appoint a Temporary Conservator over your father until a General Conservator can be appointed by the court.
This requires that your lawyer file the request for an immediate appointment of a conservator at or about the same time the general conservatorship case is filed.
What Does A Temporary Conservator Do?
The legal duty of a temporary conservator is to arrange for temporary care, protection, and support of your father. This includes protecting your father’s finances and property until a general conservator can be appointed by the court.
My father is a widower. Do I have the legal authority to file for a conservatorship on my father's behalf?
Yes. Under the law of most states, there are a number of people who can file for a conservatorship for another and include:
Your mother, if she were alive;
A domestic partner;
The children of your father;
A relative of your father;
Any other interested person or friend of your father; and
Any interested state or local entity or agency.
How Does The Court Determine Which One To Choose?
In appointing a conservator, the court is always guided by the best interests of the conservatee – in this case, your father. Assuming that your father does not have the legal mental or physical capacity to choose his preference as to who will serve as his conservator, the court will appoint one, usually a temporary conservator, who will act as a Professional Fiduciary and who will be guided by what is in the best interests of your father.
Who Pays For The Conservator?
Normally, your father’s estate, assuming there are sufficient assets. Conservators charge fees, but the court must approve these fees in advance of payment. Private independent conservators, especially if the conservator is a lawyer, can charge in the range of $250/hour or more.
If your father cannot afford to pay a conservator’s fees, you will need to consider retaining a public conservator, sometimes referred to as a public guardian or professional fiduciary. There may be fees charged here as well, but they are usually much less than the fees requested by a professional fiduciary.
What Does A Public Conservator Do?
That depends whether the public conservator is granted powers by the court over the person only, estate only, or both depending on the specific needs of your father.
What Does The Conservator Of The Person Do?
The Conservator of the Person arranges for your father's care and protection, determines where your father will live and makes appropriate arrangements for health care, housekeeping, transportation, and recreation.
What Does The Conservator Of The Estate Do?
This can be fairly broad depending on the size of your father’s estate. The Conservator of the Estate will manage your father's finances, locate and take control of the assets, collects income due, pays bills, invests your father's money and protects known assets.
Other duties include:
Providing estate management including applying and maintaining appropriate public benefits, paying bills, providing personal needs funds and acting as the representative payee;
Ensuring that your father receives appropriate mental health and physical health services;
Providing real and personal property management, including protecting assets and valuables and seeking court authority for the sale of assets when necessary to provide for the needs of your father.