Note: While some states refer to a person who has been appointed to oversee the life of an incapacitated adult as a “guardian for the elderly,” the term “guardian” in California exclusively refers to an adult who has been appointed to oversee the life of a minor child.
What does a conservator do? What are the duties of a conservator? What happens if a conservator breaches their duties?
If you are asking these questions, it’s likely because you’ve been appointed to the role of conservator, which makes you responsible for overseeing the personal and/or financial affairs of an adult who lacks the mental competence to manage these aspects of their lives on their own.
It’s essential you take the time to understand the duties of a conservator (known as a guardian for the elderly in some states, but not in California) so you can ethically and effectually protect the conservatee.
Conservatees and their family members should likewise familiarize themselves with the duties of a conservator in order to detect if the conservator is not doing their job or committing conservatorship abuse, for which a fiduciary misconduct claim may need to be brought against the conservator.
Navigating the role of a conservator can be challenging because of the sheer number of duties it entails, which is why it’s always recommended that you consult with an experienced probate lawyer prior to stepping into it. This article by Keystone Law Group can serve as a guide to help both conservators and conservatees during the conservatorship process.
Keystone’s article will cover:
- What does a conservator do?
- What are the responsibilities of a conservator of the estate?
- What are the responsibilities of a conservator of the person?
- What are the rules surrounding conservatorship financial responsibility?
- What happens when a conservator breaches their duties?
What Is a Conservatorship?
In California, a conservatorship is the legal term for a court proceeding in which a probate judge appoints a responsible adult or organization, known as a conservator, to manage the personal life and/or finances of an incapacitated adult, known as a conservatee.
For an adult to be deemed as “incapacitated,” a declaration by their treating physician that attests to their physical or cognitive disability (e.g., Alzheimer’s disease) generally is required..
As we already touched on, this same type of arrangement in some states is referred to as a guardianship.
What Does a Conservator Do?
The role of a conservator is to protect the wellbeing and/or finances of an adult (usually an elder) who cannot do so themselves because of a lack of mental competence or a physical disability.
A conservator is a type of fiduciary (just like a power of attorney, trustee or executor/administrator), which means that every decision the conservator makes on behalf of the conservatee must be in the conservatee’s best interest.
As an example, a conservator must never use a conservatee’s assets for personal gain. Suppose it becomes necessary to relocate the conservatee to an assisted living facility. The conservator would not legally be able to take that opportunity to move into the conservatee’s home; however, they could seek court approval to sell the conservatee’s home in order to pay for the conservatee’s health care, since that action would benefit the conservatee.
What Are the Duties of a Guardian for the Elderly/Conservator?
A simple way to understand the role of a conservator is to think of the responsibilities a parent has to their minor child (e.g., they are required to provide for them, keep them fed, sheltered, clothed, etc.). The duties of a guardian for the elderly are virtually the same with one exception: Conservators generally do not need to provide for the conservatee using their own assets.
The responsibilities of a conservator will be determined by the type of conservator they are as well as by the nature of the conservatorship. A conservator may be responsible for overseeing the conservatee’s finances or their person, or they may be responsible for both. Similarly, a conservatee may have one conservator managing their estate and a different conservator managing their daily needs. In a limited conservatorship, which is generally reserved for developmentally disabled adults, the conservator takes a back seat in order to allow the conservatee to live as independently as possible. Limited conservators generally assist conservatees with only major decisions, such as getting married or consenting to surgery.
Most conservators are required to obtain a conservatorship bond — which is like an insurance policy — prior to the conservatorship taking effect. A conservatorship bond aims to protect against theft, misappropriation and mishandling of the conservatee’s assets. If a conservatee does not have substantial assets, a bond may not be needed.
By securing a bond, the conservator is agreeing to fulfill their obligations in accordance with the law, because if they don’t, a claim could be made against their bond. The court determines the amount of the bond, which can be steep, but the conservator does not generally have to pay the full amount, just a minimal annual premium.
We review the two types of conservators and the conservatorship responsibilities that come with each role in the subsections below.
What Are the Responsibilities of a Conservator of the Estate?
What are the responsibilities of a conservator of the estate? Is a conservator responsible for paying the conservatee’s medical bills? Is a conservator responsible for paying their debt? Is the conservator responsible for paying these expenses from their own pockets?
A conservator of the estate is appointed to supervise the financial affairs of an adult who is found by the court to be incapable of doing so themselves. Financial conservatorships may require the conservator to manage the conservatee’s assets, income and public assistance benefits.
A conservator of the estate is responsible only for managing the finances of the conservatee; the conservator is generally not responsible for paying the conservatee’s bills or debt using their own assets (unless the conservator agrees to do so or previously entered into a legal agreement that requires them to do so).
To protect against unintended financial obligations arising from negligence or wrongdoing, conservators, especially if they do not have experience being a conservator, should strongly consider having an attorney on their team to guide them. If the attorney’s services provide benefit to the conservatee, and the conservatee has sufficient assets, the court will likely approve the conservator’s request for the attorney’s fees and costs to be paid from the conservatee’s finances.
Similarly, if the conservator of the estate needs to hire, say, a tax professional to help with the conservatee’s taxes or a real estate agent to list one of the conservatee’s properties, these expenses, too, can likely be paid from the conservatee’s finances with court approval.
Some of the responsibilities of conservators of the estate may include:
- Creating an inventory of the conservatee’s assets to submit to the court
- Filing periodic accountings of the conservatee’s assets with the court
- Ensuring the conservatee’s valuable assets are properly insured
- Paying the conservatee’s bills
- Paying the conservatee’s taxes
- Collecting the conservatee’s income
- Preserving and managing the conservatee’s assets (e.g., by placing them in interest-bearing bank accounts)
- Keeping thorough records of every financial transaction they make on behalf of the conservatee
If the conservator is planning to make a decision that would have a significant impact on the life of the conservatee (e.g., selling their home or purchasing a new residence for the conservatee), they generally would need to obtain court permission first. If the conservator is unsure whether a decision requires court permission, it is best for them to err on the side of caution and speak with a conservatorship lawyer about their plans.
What Are the Responsibilities of a Conservator of the Person?
What are the responsibilities of a conservator of the person? What does a conservator of the person do? What sorts of decisions can they make on behalf of the conservatee?
A conservator of the person is appointed to supervise the personal affairs of an adult who is found by the court to be unable to meet their own essential daily needs, including food, clothing, shelter, health care and safety.
Unless the conservator of the person and conservator of the estate are the same person, a conservator of the person’s responsibilities do not include any duty or task that is predominantly financial in nature; they are charged solely with protecting the health and safety of the conservatee. That being said, they may have to regularly coordinate with the conservator of the estate (or whoever is in charge of the conservatee’s finances) to arrange funding for the conservatee’s daily needs and health care.
Like conservators of the estate, conservators of the person are generally not responsible for paying for the conservatee’s daily needs from their own pockets.
Some of the responsibilities of conservators of the person may include:
- Arranging for the conservatee’s care and protection (e.g., hiring a qualified live-in nurse if the conservatee’s medical condition calls for it)
- Deciding where the conservatee will live (e.g., requesting permission from the court to place the conservatee in an assisted living facility if they require medical supervision around the clock)
- Arranging the conservatee’s meals
- Arranging the conservatee’s health care (e.g., making their medical appointments, seeking the court’s permission to consent on behalf of the conservatee when the conservatee needs a major medical procedure)
- Arranging for the conservatee’s clothing
- Arranging for the conservatee’s housekeeping
- Arranging for the conservatee’s transportation
- Arranging for the conservatee’s shelter
- Organizing recreational activities for the conservatee
- Ensuring the conservatee’s wellbeing
Because a conservator of the person is responsible for managing the conservatee’s health care, they may have to make life-changing medical decisions for the conservatee, but before doing so, they generally would need to seek permission from the court.
As an example, if a conservatee’s dementia has progressed to the point it has become unsafe for them to stay in a residence where they cannot be watched 24/7, their conservator of the person may find it is in their best interest to relocate them to a locked or secured facility. Before taking this step, however, the conservator of the person would have to seek the court’s permission.
Conservators of the person should also keep records of the decisions they make on behalf of the conservatee. Keeping thorough records will not only help the conservator track the conservatee’s medical history and health care but also help to protect themselves in the event they are asked to defend their actions in court. A probate attorney can help conservators of the person navigate tough decisions.
What Can a Conservator Not Do?
Because of the vast amount of power both conservators of the estate and conservators of the person have over conservatees, there is potential for misconduct. To prevent this form of elder abuse, it is important to both become familiar with the signs of conservatorship abuse and what the duties of a guardian for the elderly/conservator do not include.
Neither type of conservator is permitted to:
- Commingle their personal assets with those of the conservatee (e.g., depositing their checks into the bank account of the conservatee)
- Use the conservatee’s resources for personal gain
- Purposely act in a way that harms the conservatee’s estate or person
- Borrow from the conservatee’s estate for personal purposes
- Engage in self-dealing (e.g., selling the conservatee’s home in order to move into it themselves)
- Make risky or highly speculative financial decisions (e.g., investing the conservatee’s money in a business endeavor that is not guaranteed to turn a profit)
- Isolate the conservatee from their friends and family (i.e., unless the court has granted the conservator the specific authority to do so)
- Withhold medical care, food or other essential needs from the conservatee
- Prohibit the conservatee from marrying (i.e., unless the court has determined the conservatee lacks the capacity to make such a decision)
- Inflate how much time they spend managing the conservatee’s person or finances to receive extra compensation
If conservators have questions about what they can and cannot do, they should speak with a conservatorship lawyer before proceeding further. It is worth noting that if a conservator needs legal help, they will likely not need to pay for it themselves; rather, the conservator’s estate, if it’s well-funded, may be able to cover the costs.
What Happens When a Conservator Breaches Their Duties?
Unlike powers of attorney and trusts — which can serve as alternatives to conservatorships if they were executed prior to the incapacitated adult losing competence — conservatorships are supervised by the court, so if the conservator is not being diligent in fulfilling their duties or is engaged in misconduct, it is possible they will be found out.
If the negligence or misconduct of a conservator is successfully proven, the court may order for the conservator to be removed and replaced. And if the conservator caused significant harm to the conservatee’s person or finances, the court may even hold them liable for paying damages. In some cases, particularly if the conservator’s misdeeds could be regarded as elder financial abuse, they may be held liable for paying double or treble (i.e., triple) damages.
Unfortunately, there is also the possibility that a conservator’s misconduct or negligence will not be found out. Because most conservatees are not mentally competent enough to notice a conservator’s suspicious behavior, they may not raise alarms when it is taking place. This is why it’s important for the loved ones of conservatees to keep tabs on the conservatorship and speak to a conservatorship lawyer at the first sign of the conservator potentially engaging in wrongdoing.
That being said, California did recently enact conservatorship reforms to further protect conservatees as a result of the outcry surrounding pop star Britney Spears’ conservatorship. One aspect of these reforms is the conservatee now having a right to court-appointed counsel if they have not retained their own legal counsel and do not plan to do so.
What are the responsibilities of a conservator? Keystone’s conservatorship lawyers can help you navigate them.
If you have been seeking clarification about your role as a conservator, Keystone’s conservatorship attorneys can guide you. We have the expertise to help you quickly and efficiently navigate the complex probate system and get your elderly loved one the care and oversight they need. We have years of experience handling complex probate matters for clients across California and are eager to help with yours. Call us today to schedule your free consultation.
