Conservatorship – Estate Planning

What is conservatorship and why do I need it?

Conservatorship is a proceeding whereby a court determines if a person is unable to manage his or her property or has become unable to provide for him/herself or others dependent upon him/her for support.  A conservatorship only deals with the management of the conservatee’s property and finances. It does not empower the conservator to make any medical or personal decisions for the conservatee.

When is a conservatorship appropriate?

A conservatorship is appropriate when an individual is not incapacitated but due to illness, physical infirmity or advanced age is unable to care for his/her property and court oversight, which is lacking in the case of a power of attorney, is desirable.

When do you apply for conservatorship?

Conservatorship is necessary when an individual who due to illness, physical infirmity or advanced age is unable to manage his or her property and has become unable to provide for him/herself or others dependent upon him/her for support.  In a conservatorship there is no determination of mental incapacitation as there is in a guardianship.    

What is involved with applying for conservatorship?

In New Jersey for a person to be appointed as someone’s conservator, the conservatee must consent to the appointment.  The prospective conservatee can make the application to the court for the conservatorship or can consent to have another person make the application on his/her behalf.  A conservatorship does not mandate examinations by two physicians as does guardianship.  The court determines the need for examinations.  The court may appoint an attorney for the conservatee if necessary to protect his or her interests.  If the conservatee is unable to attend the hearing by reason of physical or other disability, the court may appoint a guardian ad litem to conduct an investigation to determine whether the conservatee objects to the conservatorship.   A conservator cannot be appointed if the conservatee objects to the appointment.

How much does it cost to file for conservatorship?

Conservatorship requires the payment of fees for filing the paperwork, fees, if deemed necessary, to the physician(s) that examine and prepare a report for the court and attorneys’ fees for the court appointed counsel and/or guardian ad litem.

How long does it take to file for conservatorship?

The entire proceeding takes 2-3 months from beginning to end.  The initial steps involve preparing the appropriate documents to be filed with the court, followed by, in most cases, a hearing before a Judge.

How long does the conservatorship remain in effect?

A conservatorship is a voluntary act whereby the conservatee consents to the appointment of a conservator.  A conservatee can terminate the conservatorship at any time upon making an application to the court.  

Does the conservatee lose any rights when a conservator is appointed?

When a conservator is appointed the conservatee does not lose civil liberties as in a guardianship.   The conservatee, however, cannot make any decisions regarding the management of property or finances until he/she terminates the conservatorship upon application to the court.   

Is a conservatorship more restrictive than a power of attorney?

A power of attorney usually does not require a court to oversee the actions of the appointed agent, however in a conservatorship, the conservator may be subject to certain rules and guidelines while the conservatorship is in effect.  For example, the court might order a full accounting by the conservator.  These restrictions are not typically set forth in a power of attorney.