A conservator takes care of an incapacitated person’s finances, property, assets, and business affairs. Conservators do not make personal or healthcare decisions. A person who needs a conservator may or may not also need a guardian, for those purposes. Conservatorship can be full or limited. Obviously, a conservator must be chosen very carefully. Attorney Karen Lane can help you decide if conservatorship is right for your loved one, and advise you in how to choose who should have this responsibility and guide you through the legal process of petitioning for appointment of a conservator.
Full or Limited Conservatorship
For the purposes of conservatorship, a minor child or an adult who is considered legally incompetent to manage their finances is referred to as a disabled or protected person.
Full conservatorship gives the conservator power over every detail of a protected person’s financial matters, and their income, property, assets, and businesses. This includes major decisions and everyday affairs such as paying bills and paying for daily expenses. In cases of severe incapacitation, such as someone who is unconscious, this is obviously appropriate.
Limited conservatorship gives the conservator specific powers and responsibilities, custom tailored to the needs of the protected person. It may only apply to investments or business decisions, and/or property management for someone who is capable of handling routine financial affairs such as paying bills and buying groceries. For others, it may be appropriate for the conservator to handle bill-paying, but for the disabled person to have control of a portion of their money for personal expenses.
Who Can Be a Conservator?
A family member or close friend is often appointed as a conservator, but in some cases a professional or an organization such as a bank is the more appropriate choice. If there is a guardian, the guardian may also be appointed to serve as the conservator.
If the protected person’s estate is complex, it may be best to choose a professional or an organization. Conservatorship involves many legal responsibilities and can be a complicated and difficult job. The liability is significant. The conservator must keep the protected person’s property, assets, and income completely separate from their own and have a legal duty to manage and protect the assets and property of the incapacitated person.
Who Needs a Conservator?
Conservators are appointed for adults who are unable to make financial and business decisions due to a medically diagnosed impairment and for minor children who do not have an adult to make financial decisions for them. In the case of a minor child, a conservator and guardian are typically appointed if one or both parents die or become incapacitated.
Alternatives to Conservatorship
Durable Power of Attorney
An alternative to Conservatorship is through the execution of a legal document called a Durable Power of Attorney. In a Durable Power of Attorney, you appoint a person that you trust, who is then called an Attorney-in-Fact, to manage and protect your money, property, and business affairs should you become disabled or incapacitated. A Durable Power of Attorney is a legally binding document and can be executed without intervention of the Court. In order to execute a Durable Power of Attorney in the state of Massachusetts, you must be eighteen years old, “of sound mind,” and not under any constraint or undue influence. The definition of “of sound mind” generally means that you, as an adult, understand that you are giving another person the power to make financial decisions on your behalf if you become disabled or incapacitated.
As a competent adult, you designate what powers to give the Attorney-in-Fact (Attorney). The Attorney does not have to be a lawyer. Limited powers can be given to the Attorney, such as just signing checks or managing bank accounts. On the other hand, you can give the Attorney general power to manage or your financial affairs should you become disabled or incapacitated. The document should include language that makes it durable. Durable means that the powers of the Attorney-in-Fact are not affected if you become disabled or incapacitated.
As long as you are of sound mind, you can modify our cancel the Durable Power of Attorney at any time.
Conservatorship attorney Karen D. Lane’s office is located in the town of Sherborn, which is centrally located in Middlesex County 3.3 miles directly south of the Mass Pike, on the Natick/Framingham town lines. She represents clients throughout metro-suburban Boston in Middlesex, Norfolk, Suffolk, Worcester, and Essex counties. Please call Attorney Karen Lane at 508-655-5513 or contact her online today to schedule your free initial consultation about Conservatorship and alternatives to Conservatorship!