A conservator is appointed by a judge. This person handles the estate of an incapacitated adult, as well as their finances, their basic affairs and everyday care. Administrative matters such as Medicare, insurance, pensions, and medical coverage are all also managed by the conservator. The conservator must keep meticulous records that are subject to review by the judge.
The Advocate’s recent article entitled “Alzheimer’s Q&A: What is adult guardianship?” explains that a conservatorship typically lasts as long as the individual lives. The conservator may change because of death, relocation, or an inability to manage the conservator duties and responsibilities. A judge also has the power to replace the conservator, if he or she is repeatedly making poor decisions or neglecting required responsibilities.
A conservator can be wise in some situations because it lets family members know that someone is making the decisions. It also provides clear legal authority to deal with third parties. There is also a process in which a judge will approve any major decisions. However, appointing a conservator can be expensive. An experienced estate planning or elder law attorney must complete court paperwork and attend court hearings. A conservatorship can also be time-consuming due to the required ongoing paperwork.
A big question is when it is appropriate to seek conservatorship. If the individual has become mentally or physically incapable of making important decisions for himself or herself, then it would be smart to have a court-appointed guardian. Moreover, if the person does not already have legal documents in place, like a living will or power of attorney, then the conservatorship would benefit in covering decisions about personal and financial matters.
Even if the individual has a power of attorney for both health care and finances, he or she might need a conservator to make decisions about his or her personal life. This can include topics, such as living arrangements and who is allowed to visit. It is not always easy to determine if an individual can make decisions, but a judge understands that a conservator is viable for those with advanced Alzheimer’s or other forms of dementia.
Under Florida law, a conservatorship is a legal relationship where the Court appoints someone to manage the estate of another person who qualifies as an “absentee.” Florida Statutes Chapter 747 governs the rights and duties of a conservator. According to Florida law, a conservator has all the “ rights, powers, and duties of a guardian of the property as established in chapter 744.” In the case of a guardian of the property, a judge may grant a guardian full power over the ward’s (and incapacitated person) estate or may limit the power granted to the guardian; however, some of the powers a guardian of the property, and therefore a conservator, might have include: (1) The right to manage and invest the absentee’s assets; (2) The right to sell the absentee’s property; and (3) The right to collect income in the name of the absentee.
Under Florida law, an absentee is:
(1) Any person serving in or with the Armed Forces of the United States, in or with the Red Cross, in or with the Merchant Marine or otherwise, during any period of time when a state of hostilities exists between the United States and any other power and for 1 year thereafter, who has been reported or listed as missing in action, interned in a neutral country, beleaguered, besieged or captured by the enemy, shall be an “absentee” within the meaning of this law; and,
(2) Any resident of this state, or any person owning property herein, who disappears under circumstances indicating that he or she may have died, either naturally, accidentally or at the hand of another, or may have disappeared as the result of mental derangement, amnesia or other mental cause, shall also be an “absentee” within the meaning of this law.
Families that want to set up a conservatorship need to file formal legal papers and participate in a court hearing before a judge. Evidence of the physical and mental condition of the individual requiring conservatorship must be clearly presented. The person who is the subject of the conservatorship has the opportunity to contest it. Ask an experienced estate planning or elder law attorney who specializes in conservatorships about your specific situation.
If you would like to discuss your options with an estate planning attorney in Jupiter, Palm Beach Gardens, or Naples, Florida, schedule a complimentary call with Edward J. Welch at Welch Law, PLLC.
Reference: The Advocate (Jan. 25, 2021) “Alzheimer’s Q&A: What is adult guardianship?”