For some members of our society, legal protection may be necessary even after they have entered adulthood. These individuals may have been injured in an accident, continue to suffer from an incapacitating physical illness or psychological disorder, or have some other condition that prevents them from caring for themselves. In these cases, a guardianship may be established.
Conservators and Protected Persons
A conservatorship is a legal arrangement that places an individual, also known as a ward or protected person, under the supervision of a conservator. There are two main types of conservator: conservatorship of the person and conservatorship of the estate or property.
A conservator is typically a family member, friend, or fiduciary appointed by the court. A protected person can be a minor without a parental guardian or an adult who can no longer make safe and sound decisions about his or her own person or property. In the case of children, the individual appointed to protect the child is called a guardian. Additionally, a person may be placed under conservatorship who is prone to fraud or undue external influence.
While conservatorship does attempt to maintain the protected person’s independence, it should only be considered in appropriate cases, as it may significantly impinge upon rights of the individual.
Appointment of a conservator can materially limit the rights and privileges of the protected individual in areas such as:
- Choosing residence
- Providing informed consent to medical treatment
- Making end-of-life decisions
- Making property transactions
- Obtaining a driver’s license
- Owning, possessing, or carrying a firearm or other weapon
- Contracting or filing law suits
- Marriage
- Voting
Right to Due Process
To safeguard the protected person’s right to due process, he or she may be entitled to notice of, and ability to attend all legal proceedings related to conservatorship. In addition, the protected person may obtain representation by an attorney, present evidence, and confront and cross-examine all witnesses.
Conservator of the Person
Conservator of the person often relegates the following responsibilities to the appointed guardian:
- Determining and maintaining residence
- Providing informed consent to and supervising medical treatment
- Consenting to and supervising non-medical services such as education, psychiatric or behavioral counseling
- Making end-of-life decisions
- Paying debts and other expenses
- Maintaining the protected person’s autonomy as much as possible
The conservator is required to report to the court about his or her activities on an annual basis for the first year and typically every two years thereafter unless the court determines additional oversight is needed.
Conservator of the Estate
Conservator of the estate transfers the following responsibilities to the conservator:
- Organizing, gathering and protecting assets
- Arranging appraisals of property
- Safeguarding property and assets from loss, whenever possible
- Managing income from assets
- Making appropriate payments
- Obtaining court approval prior to any sale of major assets
- Reporting to the court the estate’s status on a regular basis, including full accountings to the court
Many conservatorships are temporary arrangements, meant to protect an incapacitated individual until he or she regains capacity.