Leslie A. Farber
A conservatorship is the court-ordered appointment of a conservator to manage a person’s affairs. Conservatorship is granted when the individual in question can no longer make their own decisions due to diminished mental capacity, age, or a physical disability. Someone who is unable to handle their financial affairs or daily life responsibilities will be considered incapacitated by a court. The court will then assign a conservator, giving them legal authority over certain aspects of the conservatee’s life.
This authority can range from a limited conservatorship, which addresses only specific matters such as health or finances, to a full conservatorship, in which the conservator essentially has the same rights and responsibilities that a parent does over a child. However, if the incapacitated person has planned ahead and signed durable powers of attorney for finances and health care, they can avoid a conservatorship because they have handpicked someone to step in and make financial and medical decisions if necessary.
Conservators are reimbursed for expenses and paid for their services from the assets of the person they are taking care of. Payments must be "reasonable" in the eyes of a court. Generally, payments are only made to professional or public conservators, but a family member who has been appointed conservator may also seek compensation by making a request to the court.
A conservatorship can ensure that a loved one’s personal finances and healthcare issues are properly handled, and families often use conservatorships to help deal with the medical and/or financial needs of an aging parent. However, there are times when conservators mismanage their conservatees’ assets, make poor choices about their health care, or exert unnecessary control over their daily lives.
In 2021, the conservatorship case of pop star Britney Spears received widespread media attention which focused on the limits that a conservatorship can have on a person’s ability to advocate for themselves. The 13-year conservatorship had been put in place as a result of the singer’s high-profile struggles with mental health. Her father, Jamie Spears, had control over her finances and other aspects of her life during most of that time, despite claims by the 39-year-old entertainer and others that she was not incapacitated.
After a number of legal proceedings and court appearances, a judge suspended Spears’ father as a conservator in September. But the case shone a light on the often-complex judicial process of conservatorships.
All conservators are subject to court supervision in order to help prevent them from mismanaging the assets or otherwise taking advantage of those they are helping. Most courts require conservators to file regular reports detailing their actions, and conservators must often seek permission before making major decisions such as selling real estate or terminating life support. In addition, all court proceedings and documents are a matter of public record. This can be an unwelcome intrusion for someone who values independence and privacy.
A conservatee who demonstrates the ability to exercise greater decision-making should be able to have some of the conservator’s authority transferred back to themselves. Even if the conserved person does not want to change or remove the conservator, the court may decide to decrease the conservator’s authority. This can be a useful first step toward terminating a conservatorship.
The conservatee or the conservatee’s relatives can ask for the conservator to be removed and replaced if he or she is not performing their duties properly. They can also move to end a conservatorship if they feel the appointment is not necessary.
When petitioning to have a conservator changed, it is important to have a written record of the reasons for the requested changes. To end a conservatorship, the conserved person is not required to provide medical evidence. However, he or she does need to show that the conservatorship is no longer necessary.
In order to make sure your affairs are properly handled in the event a disability or disease compromises your ability to make decisions, it is best to have a discussion with the person or persons you are confident will make good conservators. It is also essential to consult an attorney who specializes in this field and can help you understand your state’s legal requirements. If you have questions or concerns, please contact us at 973.707.3322 or via email at LFarber@LFarberLaw.com.
The contents of this writing are intended for general information purposes only and should not be construed as legal advice or opinion in any specific facts or circumstances.