When most people hear the word Conservatorship, they think of Brittney Spears. People have a lot of passionate feelings about conservatorships, but they may not be familiar with how they actually work. So, let’s get into some of the most common misconceptions.
Misconception #1 - “Conservatorships are easy to get”. This is simply not true in 99% of circumstances. Firstly, the person going to have a conservator has to have a disability such that they need the Court’s protection. The burden of proving the individual needs help is on the person asking the court to establish the conservatorship, and they must show the Court clear and convincing evidence of that fact. There must be a doctor’s statement that supports the need for a conservator, which many doctors are reluctant to do. Secondly, the disabled person must have notice of the proceeding. If they object to the conservatorship (or the person to be Conservator), they will be appointed an attorney to help them dispute the Petition. Thirdly, the disabled person’s next of kin must also be notified and allowed to appear at the hearing to dispute the Conservatorship. So there are many layers of protection for people with disabilities. The Court, their doctors, their family, and the person themselves will all have a part to play in determining if it is necessary, so they are not easy to get at all.
Misconception #2 - “Conservatorships remove all rights of a person”. While it is possible to remove all rights a person has, the statutes specifically state that the Court can only take the rights that are necessary to protect the disabled person. Conservatorships should be very limited to only those things the individual really needs help with. For some, it is just financial issues. For others, it may be basic medical care. Many people with disabilities are perfectly capable of managing a number of aspects of their lives, but some cannot manage any. No two people are the same, and no two Conservatorships are the same.
Misconception #3 - “Once you are under a Conservatorship it cannot be changed”. There are specific processes outlined in the statutes for the Court to modify a Conservatorship. And the disabled person only needs to write on a piece of paper and deliver it to the court clerk to trigger the Court’s review of a Conservatorship. We make it as easy as possible for the disabled person to challenge aspects that may no longer be needed. The Court will even appoint an attorney for them if they just send in a letter (or have someone send it in for them).
Misconception #4 - “Conservators can do whatever they want”. The truth is, a Conservator can only do the things they are granted the authority to do, and the Court will be watching. A Conservator must file an annual statement to the Court stating any changes in the disabled person’s condition, living situation, or financial situation. Unless accountings are waived, the Conservator must turn in all financial documentation showing how the disabled person’s money is being spent. If anything is missing or not being spent for the disabled person’s benefit, the Court will know about it. The Court can then remove the Conservator and order them to repay the disabled person for the improper expenses. If a person’s health improves the Court will know and can modify the Conservatorship to reflect the current needs of the disabled person.
We all know people have special needs, cognitive limitations, or mental health issues. It is easy for certain people to be taken advantage of or fall through the cracks of society. Without someone watching out for them, some people are at great risk of losing their homes, not obtaining proper treatment, or falling prey to opportunists. Conservatorships give someone the legal ability and responsibility to provide for an adult person. It is only if the Conservator is abusing or neglecting their obligations to the disabled person or the Court that Conservatorships become a bad thing. The statutes have some safeguards and ways to protect vulnerable people from those who would take advantage of them, even a Conservator. Without Conservatorships, no one would have the legal ability to protect vulnerable adults or help them through life’s challenges.
If you want to know more about Conservatorships, give us a call for a free consultation.
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