Generally, conservators are appointed by probate judges to help manage the affairs of people, called conservatees, who are unable to partially or fully manage their financial affairs. Parents regularly name conservators to manage property for minor children in case they die. Conservators may also be appointed for adult individuals suffering from mental, emotional, or physical disabilities. Conservators can be temporarily or permanently appointed to address short- and long-term needs for financial oversight.
Conservators do not have unbridled powers. Conservatees who are mentally competent generally maintain the right to make or change their own last will and testament. However, even if a conservatee is incompetent, a conservator should not independently make or change a conservatee's will for him. Generally, a conservator does not have the inherent power to alter an existing will or make a new will for a conservatee.
Read More: How to Petition for Conservatorship
Seeking Court Approval
Some states allow a conservator to seek special permission from a probate court to make or change a conservatee's will. For example, Minnesota courts may approve a conservator's request to make or change a will for a conservatee. The conservator must give notice to all parties potentially affected by the request. A court hearing must occur and a judge must expressly authorize the specific request made before the conservator may proceed with creating or changing a conservatee's will.
Estate Planning Power
Conservators generally have the power to make a variety of decisions regarding a conservatee's estate planning. For example, taking action to minimize estate taxes for the benefit of a conservatee's estate may be proper. Under California law, certain conservatorship powers that can impact estate planning fall under the substituted judgment rule. As the name suggests, the rule allows a conservator in certain circumstances to employ her decision-making skills for the benefit the conservatee. Individual conservators should check their state law to determine the scope of substituted judgment rules and when court approval is required to utilize them.
Conservatee's Best Interests
A conservator must always act in his conservatee's best interest. A conservator petitioning a court to make or change a conservatee's will must show a judge the request is in the conservatee's best interests. Making or changing a will to benefit anyone other than the conservatee breaches the legal duty of trust a conservator owes to her conservatee. A conservator may also petition a court to set aside a will if he believes a conservatee was incompetent or pressured by someone at the time of signing. Court petitions, such as these, aimed at protecting a conservatee's estate interests are considered proper.
- California Courts: Handbook for Conservators
- Idaho State Bar: Guardianship and Conservatorship
- California Court: Information for the Conservator
- Justialaw.com: Conservatorship of Romo
- California Advocate for Nursing Homes: Probate Conservatorships in California
- Office of the Minnesota Attorney General: Probate and Planning
- Minnesota Office of the Revisor Statutes: 2011 Minnesota Statutes
Maggie Lourdes is a full-time attorney in southeast Michigan. She teaches law at Cleary University in Ann Arbor and online for National University in San Diego. Her writing has been featured in "Realtor Magazine," the N.Y. State Bar's "Health Law Journal," "Oakland County Legal News," "Michigan Probate & Estate Planning Journal," "Eye Spy Magazine" and "Surplus Today" magazine.