A Caregiver’s Guide to Conservatorship: What It Is and How to Get One

Usually, the conservatorship is needed because a person became incapacitated without leaving advance directives, such as a power of attorney or a health care directive for health decisions, according to Moira S. Laidlaw, former chair of the Guardianship Committee of the Westchester County Bar Association in New York.

“There is a vacuum of authority,” she says.

Are there different types of conservatorships?  

For someone who’s unable to make any sort of decisions for themselves, a court may set up a full conservatorship, in which the conservator essentially assumes control over almost everything, including the ability to sign a contract.

“We see this a lot with people with elderly parents who have dementia and can no longer manage, and haven’t done anything to protect or provide for themselves,” Burda says.

In other instances, a court may opt for a limited conservatorship in which the conservator manages only health care decisions or finances while the conservatee maintains control over matters they’re still able to handle on their own, according to Burda.

How does someone get to be a conservator for another person?

John Neil Wood, an attorney and founder of Grant Park Legal Advisors, a Chicago area firm, says, “I typically recommend that the family has a discussion about who will take on this responsibility, and discuss with them the level of liability and responsibility they are assuming prior to applying for the guardianship.”

But in families that don’t get along well enough to do that, one person may step up and file a petition and other legal documents with the court. There may even be competing petitions, according to Moira Laidlaw. That leaves it up to the judge to decide who gets the job.

It's also possible to have multiple conservators.

“Sometimes one family member will be the conservator for financial matters and another member of the family will serve as the conservator for personal issues like health care,” Melcher says.

It’s not necessarily easy to get approval.

“We are, by definition, taking away the rights of one adult and putting them in the hands of another,” Melcher says. “There is an inherent risk of abuse when we do that, so the court needs to be convinced that the conservatee is unable to care for themselves, and that we need this drastic remedy.”

Music legend Cher, 77, failed in a recent bid to obtain temporary emergency conservatorship over her adult son, Elijah Blue Allman, 47, noting that he has “severe mental health and substance abuse issues.” The court denied the petition, citing “insufficient evidence,” though more hearings are scheduled.

The court also needs to be convinced that the person seeking to be the conservator is trustworthy, capable and willing to take on the job, according to Melcher.

Who makes sure that a conservator manages a person’s affairs properly?

The courts keep an eye on what conservators do. They’re generally required to file a report at least once a year, in which they account for whatever spending and other financial actions they’ve taken, Burda says.

The court that granted the conservatorship also has the power to take action against a conservator who doesn’t do the job to the court’s satisfaction. For example, a judge can order a conservator to post a bond equal to the value of the person’s estate, or whatever amount the court thinks is appropriate. And a conservator can be removed for abuses, such as writing checks to cover his or her own personal expenses, Burda says.

What are the advantages and disadvantages of conservatorships?

On the plus side, a conservatorship means that there’s someone in charge of an incapacitated person’s affairs to look after their interests. But there are plenty of downsides as well. Once a conservator goes through the arduous legal process of setting up the conservatorship, managing another person’s financial affairs requires a lot of meticulous work, and making health care decisions can be emotionally taxing, says MacKenzie A. Hyde, an attorney in the Chicago office of law firm Clark Hill.

“It’s a very thankless job,” she says. “You have fiduciary obligations that you have to carry out, and you’re going to have other people nitpicking what your decisions are.”

Are there alternatives to a conservatorship?

Most people can avoid ever needing a conservator if they put the right measures in place in advance. Burda says everyone should do a comprehensive estate plan that includes a durable power of attorney, which designates someone to make decisions for you in the event that you’re incapacitated for whatever reason. That way, “if tomorrow I’m in an auto accident and no longer competent to execute legal documents, my spouse has the right to act on my behalf and manage everything,” Burda says. It’s cheaper and faster than going through a complex court proceeding to appoint a conservator.

But even with such planning, unexpected problems can arise. In the case of the Lenos, for example, the Los Angeles Times reported that Jay Leno needed a conservatorship to make changes in a living trust and other estate plans to guarantee that his wife would be provided for in the event that he dies before she does.