What is a Probate Conservatorship?
When someone is no longer able to handle his or her own financial and/or personal affairs, the court can appoint an individual (the conservator) to act on behalf of the incapacitated person (the conservatee). The judicial procedure for this appointment is called a probate conservatorship. The establishment of a conservatorship restricts the conservatee’s powers over financial and/or personal care decisions.
If you are a court-ordered conservator who needs to sell real property on behalf of your conservatee, we can assist you. Selling real estate under a conservatorship can be a demanding task. Our specialized service in probate, trust and conservatorship makes the sale process understandable and less stressful, plus it minimizes liability for your conservatee and assures that the property will be sold for the highest price possible in the current market. On these pages, we offer some information on conservatorship sales. We welcome your call.
Buyers contemplating a purchase should bear in mind that, as with probate sales, real property sold through conservatorship is always sold as-is. Whether or not the property has been occupied, the conservator may make no changes to the condition of the house – no repairs, improvements or even paint. In addition, buyers may have less flexibility in their offer and commitment, as conservatorship offers are written without contingencies. Properties listed for sale through conservatorship are marketed as probate listings.
What is a conservator of the estate?
A Conservator of the Estate is responsible for handling the financial affairs of the conservatee. The conservator has the power to collect the conservatee’s assets, pay bills, make investments, etc. However, the conservator must seek court supervision for major transactions, such as the purchase or sale of real property, borrowing money, and gifting of assets.
A conservatee can have different people as the conservator of person and estate or one person can serve in both functions. Some conservatees may have only a conservator of the person, or only a conservator of the estate.
Advantages of a Conservatorship
A conservatorship offers more protection against abuse of the conservatee than other devices because the court supervises the conservator. The conservator must first file with the court an inventory listing all the conservatee’s property, and later, accountings that reflect all transactions involving the conservatee’s assets. A conservatorship can be helpful as a structured mechanism for managing an incapacitated person’s affairs when no other mechanism is in place, especially when that person is reluctant to accept assistance.
Disadvantages of a Conservatorship
The court is heavily involved in the conservatorship process, and this can result in substantial costs in attorney’s fees, filing fees, and investigator’s fees. The proceeding is public, so the conservatee’s assets become a matter of public record. The conservator must continually return to court for approval of certain transactions, which require hearings and additional fees and can create delays in completing the transactions. Another important disadvantage is the potential for a massive loss of individual rights by the conservatee.
How is a conservatorship established?
The conservatorship process begins when someone proposes to the court that he or she should be appointed conservator over a proposed conservatee. This “proposal” is officially known as a petition for conservatorship.
Who can petition for a conservatorship?
A relative, friend, public official, nonprofit agency, or professional conservator may petition the court to be appointed conservator of an individual. To obtain a conservatorship, the proposed conservator must be bondable; that is, a surety agency must be willing to issue a bond ensuring that the conservator will faithfully execute his or her duties. Generally, in order to obtain a bond, a conservator must be represented by an attorney.
What does the petitioner need to do?
To obtain a conservatorship over the person, the petitioner must prove to the court by clear and convincing evidence that the proposed conservatee is “unable to provide properly for his or her personal physical needs, including: health, food, clothing, or shelter.” To obtain a conservatorship over the estate, a petitioner must prove to the court by clear and convincing evidence that the proposed conservatee is “substantially unable to manage his or her own financial resources or resist fraud or undue influence.” The petitioner must also list for the court all possible alternatives to the conservatorship and the reason or reasons each alternative is unsuitable or unavailable. Possible alternatives include: Voluntary acceptance of informal or formal assistance, a special or limited power of attorney, a general power of attorney, a durable power of attorney for finances, advance health care directive, estate management, and a trust.