Do You Want or Need a Conservator?

One of the benefits of proper estate planning is to ensure that you, and your assets, will be taken care of even if you are no longer able to do so yourself.  You may become disabled, for instance, and be unable to make important health care decisions for yourself and/or be unable to manage your finances.  Well-drafted legal documents can solve this problem by allowing you to appoint people you trust to take care of you and your financial affairs when that time comes.  That same advance planning can help protect you from unscrupulous third parties who may seek to take advantage of you during any times of perceived weakness.

Without adequate planning, there may come a period of time when health care or financial decisions need to be made for you, and no one has the legal authority to make those decisions.  When that happens, the only recourse is to seek the appointment of a conservator through the court system.

What is a Conservator and why would you get one?  A conservator is a person or an institution that is appointed by a probate court to look after a person’s affairs when that person is no longer able to do so.  The person for whom a conservator is appointed is known as the “ward.”  Depending on the circumstances, the conservator’s given responsibility may be limited to looking after the ward’s finances only.  That role is termed the “Conservator of the Estate.”  Or, the conservator may be charged with only looking after the ward’s health care and living circumstances.  That role is termed a “Conservator of the Person.”  The probate court may also name the same person or institution to both roles simultaneously.

It is important that a conservator be appointed in circumstances where the ward is unable to manage his or her own affairs and for whom there is inadequate oversight by any other party.  The obvious concern is that the ward is at great risk of physical or financial harm.  In practical terms, banks or other financial institutions may refuse to deal with anybody other than the holder of a solely-owned account.  When that account holder becomes incompetent or incapacitated, the holder’s account may essentially be frozen unless and until a Conservator is appointed.

Why might you not want a conservator?  A probate court cannot appoint a conservator without going through a judicial process that functions somewhat like litigation.  The ward will need an attorney and the prospective conservator will need an attorney.  Those attorney’s fees coupled with court costs can often be quite expensive.  Then after the conservator is appointed, there are periodic reporting requirements that will need to be satisfied.  All of the ongoing legal costs and courts costs and accounting costs can rapidly dissipate the assets of the ward.  Documentation related to the appointment process and the various periodic reports will all become part of the public record of the probate court.  Many families would prefer to avoid that kind of intrusiveness into their affairs.  Furthermore, there are many things a conservator cannot do without the approval of the probate court. 

What is an Advance Designation of Conservator?  Connecticut has enacted statute that provides that: (1) if somebody has executed a formal document that names who they want to serve as conservator in the event a probate court decides a conservator is warranted, the probate court is charged with honoring that request; and (2) the probate court is also obligated to use the “least restrictive means” of restricting the ward’s freedom.

In our estate planning practice we have created a document that takes advantage of Connecticut’s conservatorship statute.  Our “Advance Designation of Conservator” has two purposes.  The first purpose is to inform the probate court of who the client would like to name as conservator of the estate and/or conservator of the person if either is needed.  We advocate that those nominations be synchronized with the other nominations and appointments the client has made elsewhere in their estate plan.

We believe the second purpose is even more important than the first, and that is to provide the probate court with adequate evidence that a conservator should not be needed at all.  If the probate court knows that the client has created a trust with named trustees, and has also named agents under a durable power of attorney and health care representatives under an appointment of health care representative, then their personal and financial circumstances are already well looked after with no need for a conservator.

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