Conservatorship is a legal arrangement in which the assets and income of a financially incapable person are placed under the supervision of another person, known as a Conservator. Conservators are appointed by the court and given broad legal authority to manage the financial affairs of the financially incapable person, known as a protected person.
The need for conservatorship arises when an individual is unable to manage his or her financial affairs or is vulnerable to undue influence or exploitation. Conservatorships are frequently created for elderly or disabled individuals who have lost the ability pay bills, balance a checkbook, or handle other routine financial matters. If such individuals do not have a Power of Attorney authorizing an Agent to make financial decisions, conservatorship provides the legal authority necessary to do so.
In some cases, conservatorship is necessary even when a Power of Attorney is in place. An Agent under a Power of Attorney cannot take control of a person’s financial affairs over the person’s objection. So, for example, if an elderly person is being financially exploited but is unable or unwilling to acknowledge the abuse, conservatorship may be required to safeguard the person’s assets. Unlike a Power of Attorney, which is a voluntary grant of decision-making authority from one person to another, conservatorship is an involuntary grant of decision-making authority by a court. In cases where assets are being mishandled or stolen but the abused person will not allow the Agent under the Power of Attorney to intervene, only conservatorship provides the necessary legal authority.
Conservatorships are also sometimes necessary for minor children who receive significant assets. A minor child who receives an inheritance, personal injury settlement, or other significant assets will require a conservator to manage the assets until he or she reaches adulthood.
Becoming a conservator requires a formal Petition to the court. The Petition sets forth the factual basis for conservatorship and states that the proposed protected person is “financially incapable.” Under Oregon law, “financially incapable” is defined as:
“[A] condition in which a person is unable to manage financial resources of the person effectively for reasons including, but not limited to, mental illness, mental retardation, physical illness or disability, chronic use of drugs or controlled substances, chronic intoxication, confinement, detention by a foreign power or disappearance. “Manage financial resources” means those actions necessary to obtain, administer and dispose of real and personal property, intangible property, business property, benefits and income.”
When a Petition for Appointment of a Conservator is filed, copies of the Petition must be provided to the financially incapable person and to certain family members, public agencies, and other individuals. These individuals and organizations are given 15 days to consider the Petition and file objections. If no one objects during the 15-day notice period, the court enters a Judgment appointing a conservator. If objections are filed, the court holds a hearing to decide whether conservatorship is necessary and, if so, whether the person nominated to serve as conservator is an appropriate candidate. After the hearing, the court enters a Judgment.
Once appointed, a conservator has several important legal obligations. In most cases, a bond must be obtained to insure the protected person’s assets. The conservator must then transfer assets into the name of the conservatorship, file an inventory with the court, and actively manage the protected person’s financial affairs. Serving as conservator can involve everything from simple bill payment to complicated investment and business decisions. A conservator must keep excellent records of all financial transactions, and is required to prepare and file an annual account with the court itemizing every receipt and disbursement of assets.
Seeking appointment of a conservator for a loved one can be difficult. Often, those in need of conservatorship lack insight into their condition and feel threatened by the process. At the same time, family members may have conflicting thoughts and feelings about who should be conservator, or whether conservatorship is warranted in the first place. We can help you navigate these issues and chart a smooth course to ensure that your loved one’s assets are safeguarded and prudently managed.
At Edgel Law Group, we regularly represent those seeking conservatorship for a loved one, as well as those who object to the appointment of a conservator. We are well-versed in the law of conservatorship and have deep experience counseling our clients, preparing legal pleadings, and representing our clients in court. Call us today: