Everyone likes to think that they’ll be able to take care of their own affairs forever, but life doesn’t always work out that way. If your friend or loved one becomes incapacitated to the point where he can’t attend to himself or his personal business, someone must do it for him. This requires court approval, and the process begins with filing a petition. In most states, a few other steps are required as well.
A Conservator’s Responsibilities
There are two kinds of conservatorships – one for the person and one for the incapacitated individual’s financial dealings. Both roles might be filled by the same person, but such an arrangement isn’t automatic. The court must approve requests for each separate conservatorship. In some states, such as Missouri, a conservator of the person is called a guardian. In others, such as California, both roles are called conservatorships.
Submitting a Petition
If you decide you want to be appointed as someone’s conservator, you may need standing – you have some relationship with the incapacitated person. Government agencies can usually intercede on behalf of an incapacitated person as well. Courts tend to prefer that family members assume this responsibility, but others who have an interest in the person typically aren’t barred from acting unless the family objects. If you don’t want to personally serve as the individual’s conservator but you think he needs help, you can file a petition and ask that someone else be appointed. The exact form for a petition may vary by state, but it generally includes your request, information that identifies the incapacitated person, and the reason you believe he needs a conservator. The petition is usually filed with the probate court in the county where the incapacitated individual lives. In some states, you must then make sure he receives a copy of the petition – even if he can’t understand what it is – and his family gets a copy as well.
The judge won’t just rubber-stamp your request. In most states, the court will want an expert opinion that the individual you’re looking to protect is indeed incapacitated. In California, the court assigns an investigator to speak with the potential conservatee as well as his family members and others who have knowledge of his welfare. In other states, testimony may be taken at a court hearing, establishing proof that the conservatee is impaired. In South Dakota, you must submit a physician’s report, and in Missouri, the court will appoint an attorney for the incapacitated individual if he’s unable to arrange for one himself.
The Court’s Decision
Some states, such as Missouri, require that you have legal representation to file for conservatorship, not necessarily to draft the petition but to appear and present the case when the court schedules a hearing on the matter. At the hearing, the court’s decision will come down to what is in the best interests of the conservatee. If the individual is cognizant enough to state his own wishes as to who he wants to act, this typically carries a great deal of weight. He can create an advance directive stating who he would like to serve, but the document must generally be relatively recent, such as no more than five years old. If the court grants your request, you’ll be given written authorization to act on behalf of the conservatee. You may have to post bond to protect his estate against any wrongdoing on your part, particularly if the conservatee has a large or valuable estate. After appointment, you must typically make reports to the court at regular intervals, explaining any actions you’ve taken on the conservatee’s behalf.
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.