Probate Conservatorships - Estate Planning Issues - P1

Probate Conservatorships - Estate Planning IssuesBy Toma Franklin, Staff Writer

What Is A Probate Conservatorship?

A Probate Conservatorship is a court proceeding in which a Judge selects a person, known from then on as a conservator, to manage the personal needs (known as Conservatorship of a person) and/or finances (Conservatorship of the estate) of a legal adult. This differs from the Guardianship appointment, which involves an appointed adult and a minor child.

How Do Probate Conservatorships Differ From Other Types Of Conservatorships?

Probate Conservatorships also differ from mental health, or LPS Conservatorships, since LPS Conservatorships are reserved only for those with a serious mental illness who require very powerful drugs to control their behavior. Limited Conservatorships, which apply to those who are developmentally disabled, is considered a type of Probate Conservatorship, but has different requirements and restrictions.

What Are The Rights And Responsibilities Of The Conservator?

As a conservator of another person under a Probate Conservatorship, a person does not automatically become a conservator of the estate, unless the appropriate petition is approved and filed. In this case, the conservator controls the conservatee's finances, but the conservatee still has the power to make their own will, unless the court allows the conservator to do so, which typically occurs under the following conditions:

The conservatee becomes too ill to create a Will or an Estate Plan The Conservatorship in question has been established because the conservatee had been taken advantage of in the past, and the existing Will or Estate Plan has been deemed invalid by a court of law.

Medical Probate Conservatorships

When it comes to issues of medical treatment and care, the appointed Medical Conservator has the authority to supervise the routine medical care and well being of the conservatee, as long as they do not object to this. In cases of medical emergency, the conservator has the legal authority to supervise the care of the conservatee whether or not they agree. Medical Conservators can also ask the Court for power to give informed consent, in the event that care is recommended for the Conservatee that they refuse to accept.

In the even that the Conservatee becomes unable to give informed consent, their physician will likely provide a declaration form for the Conservator to submit to the court. If this declaration is approved, the Conservator will be able to make most medical decisions without the permission, consent, or knowledge of the Court.