A conservator is a court-appointed individual responsible for overseeing a disabled person’s personal and financial affairs. The court selects on behalf of a person who cannot make decisions due to an illness, injury, or disability. In many situations, these incapabilities make it challenging for a person to comprehend and make decisions.
For instance, the following scenarios show that a person may need a conservator:
- That person is in a coma;
- That person is cognitively challenged;
- A person who suffers from Alzheimer’s disease or other forms of dementia;
- A person who has had a stroke;
- A person who has suffered a brain injury.
The court has to determine if the person is indeed incapable or not. To determine this, the court will hold a hearing and review all the facts to figure out whether or not a conservator is needed in the situation. Below are general guidelines the court will analyze before making a decision:
- Carefully consider the person’s current state of finances, healthcare, and other personal matters related to making decisions in their life;
- Have transparent communication regarding all the matters that need decision-making. Determine the individual’s wishes and preferences for their lifestyle.
Once the court rules that it will appoint a guardian or conservator for an incapacitated person, the incapacitated person is known as the ward.
What Are the Signs of Conservatorship Abuse?
Once a family member or a loved one is placed under conservatorship, keeping a guard regarding their affairs is viable. There can be situations where there is room for potential conservatorship abuse.
All ages can become victims of conservatorship abuse. Any individual under conservatorship might be at risk of some form of abuse, regardless of their age or cognitive ability. Therefore, knowing some of the warning signs and ways to prevent it is important.
It is crucial to detect the warning signs early on and know how to protect those who are most vulnerable. Conservatorship abuse has become increasingly common in recent years. Below is a brief description of what financial exploitation may look like (most common form of abuse):
- Past Due Bills: The conservator is responsible for paying the bills on time. Failing to do so and having overdue bills pulled up is considered one of the signs of abuse;
- Shift in Gifting Behavior: The conservator starts to forget or significantly downsize birthday or other holiday gifts that are meant to be given on behalf of their conservatee;
- Changes in the Estate Plan: There is a sudden shift in the assets, and they are reallocated fraudulently to only benefit the conservator;
- Bounced Checks: Checks written on behalf of the conservatee are bouncing due to lack of funds.
Besides the financial abuse listed above, other forms of abuse exist as well. For instance, there is emotional abuse, physical abuse, and neglect. However, not all forms of abuse are equally detectable. In the majority of the cases, the corrupt conservator will do their best to conceal them. It is critical to implement mechanisms for oversight and accountability as needed.
How to Fight Against Conservatorship Abuse?
Conservatorship appointment grants immense authority to the conservator and must be considered as a last resort legal option. The process should secure someone’s legal rights, not take them away from them. Therefore, it is crucial that courts only assign when conservatorships are considered almost necessary. One of these situations includes the conservatee being unable to manage their affairs due to mental illness or cognitive disability.
Some states have implemented stricter legislation to ensure that conservatorship is not abused. Furthermore, some states mandate a registration system and create ways for the courts to revoke conservator rights if they fail to act in the best interest of the client. Another mechanism for deterring abuse is vetting. There needs to be a close review of whether or not the conservatorship is beneficial in the scenario. Adequate vetting can prevent certain frauds and abuse.
Moreover, there have been cases where conservatorship was placed without a hearing and a proper assessment. Sometimes, a medical assessment from the physician is missing or not conducted. These circumstances raise red flags and should be immediately investigated.
Additionally, the candidates for the conservatorship should be granted a proper hearing and mental assessment to validate that they do not have the mental capacity to handle their affairs. The court system holds the responsibility to uphold the laws of the conservatorship and step in if there is any sort of abuse.
If any suspicions of conservatorship abuse arise, the conservatee must report it immediately and seek legal counsel. You have the right to either petition to terminate the conservatorship or petition to change the conservator. Remember, the conservatee may not have the resources to self-advocate. Therefore, the caretakers must be vigilant when it comes to their loved one conservatorship.
Another safeguard against conservatorship abuse is prevention. If not handled properly, it can lead to other issues that infringe on the rights of women, the elderly, and individuals with disabilities. As mentioned above, courts use this legal pathway for necessary cases. More oversight is needed for this area of law.
Moreover, you can use another powerful tool to prevent abuse in a conservatorship. This is known as estate planning. During the process of establishing our estate, we also have the option of forming a Health Care Directive and a Power of Attorney. With these legal documents, you can voluntarily select an individual whom you trust to manage your affairs if you ever become incapacitated.
However, having a Power of Attorney does not override the possibility of a conservatorship. But, if the court determines that your plan is valid, then it will not likely replace it. The main priority of having this in place is to safeguard your rights. Therefore, by creating an estate plan, you can plan and know that your affairs will be handled by someone you vetted, hand-selected, and trusted. This can be a great relief when an unexpected situation unfolds.
If something does happen unexpectedly, you will be prepared to handle it, and it will be according to your plan. These legal options are meant to empower you and protect your rights against abuse.
Conservatorships are considered necessary in some cases. However, the actual process can be improved by implementing additional protection mechanisms to prevent abuse.
In essence, a conservatorship restricts an individual’s rights to autonomy. Therefore, paying close attention to this procedure and understanding how to appoint a proper conservator is incredibly important. In some cases, having a conservatorship can further complicate family relationships. Meaning, a conservator can remove the decision-making control from the family members.
Lastly, conservatorships are expensive. Typically, they range from $50 – $135 an hour or more depending on the case. In addition to these costs, there are attorney fees and ongoing legal costs. You can use funds from the estate to utilize the conservator services.
When Do I Need to Contact a Lawyer?
Conservatorship is an important legal tool for accomplishing certain goals when dealing with decision-making in your life. However, if abused the consequences can be greater.
Understanding how each party’s rights function in a conservatorship can provide a way to uphold those rights. If you believe that there has been abuse in a conservatorship, do not hesitate to reach out to your local estate lawyer to assist you in your case. LegalMatch can connect you with an estate lawyer who can help you with your legal needs.
