By Catherine Hodder, Esq. | Reviewed by Joseph Fawbush, Esq.
You may be hearing a lot about conservatorships lately. Conservatorships are legal safety nets for people who cannot care for themselves.
A conservatorship is a legal proceeding where a court appoints a person or organization to care for another person who is unable to manage their own affairs. The person or organization in charge is called a “conservator.” This proceeding usually happens when the person, called the “conservatee” cannot make decisions for themselves due to a mental illness or cognitive decline (such as dementia or Alzheimer’s disease) or physical disability or incapacity.
The #FreeBritney movement highlighted conservatorships when Britney Spears successfully fought release from her 14-year conservatorship in 2021. Now Jay Leno seeks a conservatorship for his wife suffering from Alzheimer’s disease, and Cher is petitioning a conservatorship for her adult son Elijah Blue, who has a history of mental health issues and drug use.
It is troubling when a family member or other loved one cannot manage their personal finances, make medical decisions, or handle their personal care. But is a conservatorship appropriate? To help you learn more, here are five basic questions and answers about conservatorships:
1. What Is the Difference Between a Conservatorship and a Guardianship?
Depending on the state you live in, a conservatorship and guardianship may be two names for essentially the same legal responsibility.
However, in other states, guardianship refers to the legal authority to manage the affairs of children, while conservatorship is the adult version of guardianship. To make things even more confusing, some states, like California, distinguish between a conservator of the estate (one who manages your financial affairs) and a conservator of the person (one who manages your personal affairs and well-being).
2. For Whom Are Conservators Usually Appointed?
Conservatorships are typically for situations in which a person can no longer manage their own decisions, whether as a result of illness or mental or physical disability. For example, if you have an aging parent who can no longer take care of themselves due to cognitive decline, you may ask for an appointment of a conservator for them to handle their bank accounts, health care decisions, and plans for long-term care.
A court appoints and supervises the conservator, which grants only limited powers over the affairs of the conservatee. The court may award a temporary conservatorship or a permanent one, but it may be subject to a periodic review.
3. What Does a Conservator Do?
Depending on the powers granted by the laws of the state and the judge in each case, a conservator may manage either financial matters or personal needs (such as healthcare and living arrangements), or often both.
The conservator has a fiduciary duty to act in good faith. This duty means responsibly managing the conservatee’s assets and making decisions about finances, medical care, and living arrangements in the conservatee’s best interest.
4. Can You Avoid Being Placed Under a Conservatorship?
Conservatorships are necessary safeguards if you can no longer manage your affairs. However, there are steps you can take to avoid the need for a court proceeding. A durable power of attorney is a legal document where you appoint an agent or attorney in fact to handle your financial decisions and affairs. A medical power of attorney or healthcare directive allows you to name an agent to talk to medical providers and handle your healthcare decisions. If you become incapacitated, your named agent can handle your affairs without a court order.
These documents can be completed either on your own using state-specific online legal forms or with the help of an estate planning attorney.
5. Where Can You Learn More?
Because conservatorship laws vary from state to state, you can find out more by looking up your state’s codes and statutes. Your local courthouse may also have free information about conservatorship laws in your jurisdiction.
For more personal guidance about helping an incapacitated person, you may want to consult an experienced family law attorney who can answer your questions and help you navigate through the different types of conservatorships.