In our last blog entry, we discussed the process of becoming a guardian of an incapacitated individual. We also touched upon how, in most cases, guardianship does not contain financial powers for the incapacitated individual, and instead that is a separate process called conservatorship. If you have questions about conservatorship or guardianship, our Troy, MI probate lawyer is available to help.
What Is A Conservator?
A conservator is a person who is appointed by the Probate Court to manage the financial affairs of a person who is incapable of managing their financial affairs themselves. Like in a guardianship, the person for whom a conservator is being appointed is referred to as either the incapacitated individual or the ward. The same person or entity can serve as both guardian and conservator for the incapacitated individual, or they can be separate persons or entities.
Filing For Appointment
In order for someone to be appointed conservator for the incapacitated individual, a petition has to be filed with the Probate Court in the county where the incapacitated individual resides requesting that a person or entity be appointed as conservator for the incapacitated individual. The person who files the petition does not necessarily have to be seeking to be named conservator themselves. Who has priority to serve as conservator for the incapacitated individual is defined by statute and varies slightly from the priority of appointment of a guardian.
Forms
Exactly what forms will have to be filed with the Probate Court to have a conservator appointed for the incapacitated individual vary depending on the circumstances, but in general include:
- Petition for Appointment of Conservator and/or Protective Order
- Notice on Petition for Conservator or Protective Order
- Acceptance of Appointment
- Protected Person Identifying Information
- Addendum to Protected Person Identifying Information
All of these forms will have to be served on the incapacitated person as well as all other interested parties to the petition.
The Petition Process
The Petition for Appointment of Conservator and/or Protective Order is the most important of these forms. This form contains critical information about the incapacitated individual, financial information about the incapacitated individual, as well as information about the petitioner and the person nominated to serve as conservator. The petition can also be used to request a temporary protective order over the incapacitated individual’s assets until a conservator is formally appointed.
When preparing this petition, it is often helpful to have letters from doctors, psychiatrists, and other professionals giving a diagnosis of the incapacitated individual’s condition and recommending that a conservator be appointed. Letters from family members and others close to the incapacitated individual may also be helpful. These letters can be filed with the petition.
Guardian Ad Litem’s Role
Like in a guardianship, once the petition is filed, the court will often appoint a person called a Guardian Ad Litem to visit the ward and potentially speak with doctors, psychologists, and the relatives of the incapacitated individual. The Guardian Ad Litem’s job is to gather information and make a recommendation to the Probate Court as to whether they feel a conservator is necessary, any limitations they believe should be placed on the conservator, and whether they believe the person who is requested to serve as conservator should be appointed, or whether they suggest someone else to serve as conservator.
In addition, they will also investigate and let the court know if they believe any financial exploitation of the incapacitated individual is going on and who they believe is committing the exploitation. They will also recommend whether the protective order needs to be extended or one should be issued in the absence of an already existing protective order.
The Hearing And Appointment
There will then also usually be a hearing scheduled in which all parties involved are requested to be present. At this hearing, the court will usually decide as to whether a conservator is needed and who will serve as conservator for the incapacitated individual. Depending on the court, the circumstances of the particular incapacitated individual, the amount of assets, and other factors, the court may require the conservator to post a bond prior to being formally appointed.
Following the hearing and posting of a bond, a Letter of Conservatorship will be issued by the court appointing the conservator.
Duties After Appointment
Once a person is appointed conservator, they will have certain duties and responsibilities to the individual they are conservator for as well as the court. Those duties and responsibilities will be the subject of future blog entries.
If you need help with conservatorship or other estate planning or probate issues, reach out to Gudeman & Associates, P.C. today.
