Conservatorship
What is a Conservatorship? It is a protective legal process in where the Massachusetts Probate and Family Court will have appointed a Conservator -- with fiduciary duties -- to marshal and manage the property of an individual (the Protected Person or the Principal) who is disabled and requires a substitute financial decision maker either (1) to prevent the property from being wasted or dissipated, or (2) facilitate the financial support, care, and welfare of the person.
Note: The execution of a Durable Power of Attorney MAY avoid the Court’s involvement in the Conservatorship. A Durable Power of Attorney involves a competent individual (the Principal) to nominate whom they want to manage their assets and income should the Principal eventually become incapacitated. Here, the Principal also can nominate whom they would want appointed for their Guardianship.
What does a Conservator do? A Conservator has the authority to collect, hold and retain assets of the Principal’s estate, AND the Conservator has the duty to manage, allocate, and invest assets, such as paying the debts and ongoing bills of the Principal.
Note: The Conservator is not personally financially responsible for the Protected Person (the Principal). Rather, the Conservator must pay all of the Principal’s expenses from the Principal’s income and assets.
The Conservator may delegate the duties in management of investments to an agent, but must therein, exercise reasonable care and caution in appointing the agent; such agents include financial planners, accountants, brokers, etc.
Such duties require that the Conservator (1) keeps the Protected Person’s assets and income completely segregated (and not comingled) as well as (2) is obligated to keep proper bookkeeping. The Conservator is ultimately responsible for the proper management of the assets of the Principal.
What is the legal process to obtain a Conservatorship?
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In order to obtain a Conservator, an interested individual or agency must file a “Petition” the Probate & Family Court.
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The Petitioner must also file a “Medical Certificate” signed by a licensed professional (as outlined in the statute). The licensed professional will have evaluated the proposed Protected Person within thirty days prior to the filing of the Petition.
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A “Bond” for the proposed Conservator also must be on file with the Court.
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“Notice” is given to all interested persons as well as to the proposed Protected Person.
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Then a Court hearing date then is scheduled, and at the hearing, the Petitioner must furnish an updated Medical Certificate signed by the licensed professional, who yet again, evaluated the proposed Protected Person within the prior thirty days before the hearing.
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The Medical Certificate must support the need for the Conservatorship.
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The Judge then determines if the petitioners meet the criteria for an appointment of a Conservator, and appoint the conservator accordingly.
Who Can be a Conservator? There is a priority list of people to be appointed by the Probate Court as Conservator.
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First is the Attorney in Fact, nominated during the Principal’s document delineating Durable Power of Attorney.
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Second in the priority list is the “fiduciary” (e.g., a Guardian) that had been previously court-appointed.
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Third, would be a person nominated by the Protected Person.
For good cause, the Court always has the ability to determine that the above individuals would not be appropriate and therefore opt to appoint any other individual.
Once a Conservator has been appointed by the court, that Conservator has the responsibility to file an “Inventory” with the Court within 90 days of the Court appointment, AND a Conservator’s “Financial Plan” must also be filed with the Probate Court.
A Conservator can be appointed either as a Temporary Conservator (for a period of no more than 90 days) or a Permanent Conservator.
Hiring an attorney can be extremely helpful in the court process of obtaining a Conservator. Click here to schedule a consultation with an Attorney to help you with appointing a conservator.