A conservatorship is a legal proceeding wherein a petition is filed (most frequently by a family member) in court to request that a conservator be appointed for an individual. The probate court always appoints a lawyer to represent the person who is the subject of the conservatorship. There must also be a recently dated physical examination accompanied by a doctor’s report.
A conservator, similar to a guardian who is responsible for the individual's personal and financial affairs, can be appointed by the court.
A conservator of the person is appointed if the individual's decision-making ability is diminished to the extent that he or she is at risk of endangering his or her personal health, safety or welfare or that of others.
A conservator of the property is appointed if the individual's decision-making ability is diminished to the extent that his or her financial assets are at risk of being dissipated or improperly managed.
The conservator will have ongoing duties to report o the probate court periodically regarding he person’s health and finances. Under a change in 2007 change in Connecticut law in 2007, conservatorship hearing must now adhere to the formal civil court rules of evidence making conservatorships less certain and more expensive.
In planning for clients, one of the objectives is to have the tools in place to avoid conservatorship. No one chooses to have court supervision over his or her affairs, except in the case of a voluntary conservatorship. A conservatorship proceeding is a court proceeding which is costly and cumbersome and limits flexible decision-making.
The tools necessary to avoid conservatorship include:
- A durable power of attorney, where the client appoints an agent to step in his or her shoes for financial decision-making and
- An appointment of health care representative, where the client selects a representative to communicate medical decisions for him or her in the event the client lacks decision-making capacity for medical decisions.
With these advance planning tools, it is likely that a conservatorship will be avoided in the event the client's decision-making capacity is diminished to the extent otherwise required for such proceeding.
Even with the advance planning tools in place, a conservatorship proceeding is sometimes commenced in court by the client's family members.
While the power of attorney is the key tool, it does not remove the client's decision- making capacity. An agent under power of attorney may be managing finances or otherwise acting in the client's best interests while the client is acting contrary or in opposition to the agent's actions. Thus, a conservatorship may be necessary under such limited circumstances.
Another case where a conservatorship proceeding may be commenced, even with a durable power of attorney and document appointing a healthcare representative, is when family members differ in how the client's financial assets should be managed. Or they differ on issues pertaining to personal or medical decision-making. Such disputes if not able to be mediated frequently result in a conservatorship proceeding before the court.
The conservatorship statute is extremely complex, we cannot emphasize enough the need for advance planning and obtaining competent legal advice.