Under Massachusetts law, two types of legal processes exist to provide protections for those who are found to need them. Unlike a guardian, a conservator deals with finances rather than the personal and healthcare decisions of the protected person.
Conservatorship is the legal process of appointing a person — called a conservator — to make financial decisions on behalf on another person. In a sole conservatorship, unlike a joint conservatorship, only one person assumes this responsibility.
Who Needs Sole Conservatorship?
Conservatorship is a way of protecting a person’s property, income or other assets when they are unable to make financial or business decisions in their best interests. In some cases, this will be an adult with special needs, an elderly adult who needs additional support making financial decisions, or an adult who is physically or mentally ill.
In some cases, the protected person under a conservatorship is a minor child who is the recipient of significant assets or funds, such as when both parents are deceased. Because a minor cannot legally control or manage the responsibilities of an estate, a conservator may need to be appointed to handle financial matters.
How Do I Get a Sole Conservatorship?
If you are seeking sole conservatorship of a loved one, you must file a petition with the Probate and Family Court as well as demonstrate why you believe the person in question is unable to manage their finances and how you intend to resolve existing concerns and prevent future problems. Your petition will need to answer the following questions.
- Why is conservatorship needed? Adults with special needs, acute onset of severe mental illness or traumatic brain injury — or even those who have gone missing — might all be candidates for conservatorship to ensure that their property and finances are in the best hands. In the case of a child, no Medical Certificate or Clinical Team Report is necessary to demonstrate they are incapable of managing their own finances.
- What harm will conservatorship prevent? In the 1990s, courts around the country made changes to conservatorship laws to prevent unnecessary removal of people’s rights when it came to their finances. Therefore, it is the responsibility of the petitioner to strongly demonstrate the harm that could result from the conservatorship being denied.
- How will the conservator prevent that harm? In all cases, the petitioner must explicitly demonstrate the steps they will take to prevent financial harm. This is only the first of many detailed financial planning and accounting documents they will need to file should the petition for conservatorship be approved.
What Are the Duties and Limitations of a Conservator?
Under Massachusetts law, the primary duties of a conservator are:
- To serve as a fiduciary responsible for managing the protected person’s property, but only as the court authorized in the decree
- To encourage the protected person to participate in decisions, act on their own behalf, and regain the ability to manage their estate and business matters to the extent possible
- To tell the court if your address or the protected person’s address changes
- To tell the court if the protected person dies by filing a copy of their death certificate and a final account
These duties are broken down into any number of specific tasks and duties, depending on the circumstances of the protected person’s estate and any limitations that the court has imposed on the conservator regarding protected persons’ financial decision-making and management of their own finances. Common limitations of conservators’ powers allow the protected person to retain the rights to:
- Have and spend a certain amount of money each week
- Plan a budget and direct the conservator in expenditures
- Purchase and give gifts to whomever they please (often within a certain dollar amount per month)
- Participate in the operation of their business and investments
Conservators do not have personal access to the protected person’s finances, nor can they use the protected person’s assets or funds to benefit their own interests. The court requires extensive documentation regarding the estate’s inventory and annual accounting and may even require the conservator present a budget in an easy-to-understand format to the protected person and any other court-ordered parties.
What Are the Duties of a Conservator Appointed for a Minor?
As with any conservatorship, the conservator of a minor’s estate must responsibly manage their assets and funds for them. Sometimes, the minor is under a conservatorship only until another form of financial arrangement, such as a trust, is established. Other times the conservatorship may last at least until the protected person reaches the age of majority — or beyond, in the event that the conservator petitions the court for an extension.
In some cases, the conservator is appointed because the child’s parents are both deceased and their estate has passed to the child, with or without a will in place. Other times, the minor has received a large inheritance from another family member, such as a grandparent, or even has their own income source, such as in the case of famous child stars.
In cases where the child’s parents are living, it is often a parent who becomes the conservator, but some parents prefer not to take on these duties and instead have a trusted third party manage their child’s financial holdings in either a full or limited capacity.
Some of the common duties of a conservator of a minor’s estate include:
- Deciding where to hold liquid assets
- Managing investments
- Paying health, education and other expenses
- Preparing and filing income tax returns
- Filing court-mandated accountings
How Long Does Conservatorship Last?
While a permanent conservatorship lasts until the protected person dies or a judge revokes it, a temporary conservatorship lasts for only 90 days. If the issue preventing the protected person from managing their own affairs has not yet been resolved, the court may extend the order for an additional 90 days. After that, the conservator may petition for a permanent conservatorship if other arrangements have not been made.
When it comes to minors under conservatorship, unless other legal petitions are filed and approved to extend to the conservatorship, the minor will have access to their own finances when they reach the age of 18 or 21.
What Does a Conservatorship Lawyer Do?
The goal of the courts and attorneys is to find the most effective but least restrictive way to protect a person who needs it. Conservatorship attorneys can support any interested party in a conservatorship case or act as an adviser during the conservatorship period.
How Do I Avoid Conservatorship?
If you do not have a will, your estate will pass on to your heirs under the law of intestate succession. Even if you have a will that names your children, you may not have considered what happens if you die while they are still under the age of majority. When your children are minors, the court will appoint a conservator to manage the estate. The same applies for payable-on-death accounts, such as life insurance and bank accounts. In some cases, this may not even be someone you know.
A trust is one way to avoid, in most cases, the need for a conservator for yourself, your loved ones or your children. Estate planning nearly always removes the need for conservatorship, and it offers several other benefits, including reducing tax burdens, protecting digital assets and providing a path for continued medical care for special needs or elderly family members. At The Law Offices of Kimberly Butler Rainen, we will work with your family to develop an estate plan that will help protect you and your family.
No parent wants to consider not being there to care for their young children, and we know that planning for the possibility can be difficult. But however stressful thinking about it may seem to be, family estate planning is one way to provide your family financial security and yourself peace of mind.
Contact our office today to schedule your consultation today, and let The Law Offices of Kimberly Butler Rainen help you find the best solution for your family’s future.