When a person becomes incapacitated and requires help with managing his own affairs, appointing a conservator becomes necessary. Conservatorship is a legal mechanism by which the probate court appoints a substitute decision-maker for an individual who is determined to be incapable of managing his or her own financial or personal affairs. The definitions of incapacity vary slightly from jurisdiction to jurisdiction and depend on the level of support sought for the incapacitated person. Generally, however, a person is considered incapacitated if his or her ability to receive and evaluate information or communicate decisions is so impaired that the person cannot take care of his or her own physical health or safety (meaning provide the healthcare, food, shelter, clothing, etc. the person needs to avoid serious physical injury or illness).
In Connecticut, a conservator of the estate supervises financial affairs, including, among others, caring for property, managing bank accounts and ensuring the safe handling of the person’s income. A conservator of the person supervises personal affairs assuring that the person’s basic needs, including food, shelter, clothing and health care, are met. In Massachusetts, only the nomenclature differs in that a conservator of the person is called a guardian, and a conservator of the estate is called a conservator. Conservatorships are under the jurisdiction of the local probate court.
There is a difference between a voluntary conservatorship and an involuntary conservatorship. To appoint a voluntary conservator, an individual simply files a written application with the probate court specifying who should serve as the individual’s conservator. Unless there is a good reason not to do so, the probate court judge will appoint whoever is designated in the conservatorship application.
In contrast, an involuntary conservator is requested by a third party to manage the financial or personal affairs of someone who is legally incapable of doing so himself or herself. Many involuntary conservatorships are initiated by medical facilities, such as, for example, hospitals, assisted living facilities or nursing homes. Once medical personnel determines that a person cannot make decisions regarding his or her welfare, the facility will begin the involuntary conservatorship process by alerting the State authorities. A hearing is then held at a probate court, which receives evidence regarding the individual’s mental and physical condition, the ability of the individual to care for himself or herself or to manage his or her affairs, and the ability of the individual to meet his or her needs without the appointment of a conservator. To affirm the appointment of an involuntary conservator, a probate court in Connecticut must find by “clear and convincing” evidence that the individual is incapable of caring for himself or herself. The court must also find that a conservatorship is the least restrictive means of intervention. For example, the court must determine that the individual does not have a valid durable power of attorney or appointment of health care representative or if those instruments are present, they are not sufficient to carry out the individual’s financial and personal affairs. Similar standards apply under Massachusetts probate law.
In appointing a conservator, the court tries to put the best interests of the individual first, trying to determine who the conserved person prefers. For example, a court will not approve a conservator who has interests that may conflict with those of the conserved person, such as, for example, a creditor of the conserved person. Generally, however, almost anyone (except a minor) willing to take on the responsibility can be appointed as a conservator. The conservator can be a relative or friend, a private professional conservator, or a state-appointed conservator, such as a lawyer.
All conservators are obligated to promote and protect the well being of the individual and to encourage the development of maximum self-reliance and independence. Conservators must seek court approval before taking certain actions including making gifts, changing investments or mortgaging/selling a conserved person’s primary residence.
Our law firm is frequently called by the probate courts to serve as a conservator for an incapacitated person or an attorney for an incapacitated person who is sought to be conserved. Building on the strength of our experience, our firm can offer expert yet compassionate advice for families and individuals considering a Connecticut or Massachusetts conservatorship. We can advise you regarding the best solution for your personal situation, and whether a conservatorship or some other legal alternative would best suit your needs.