Guest Contributor: Elizabeth Baum, Esq., Conservator
If an adult is unable to manage his or her money, property, or business affairs due to a disability, and the adult has not previously appointed a person to make financial decisions on his or her behalf, the Massachusetts court can step in and appoint a Conservator for the adult. In Conservatorship, the disabled adult is called a Protected Person. The Conservator manages the Protected Person’s estate and directs funds for the adult’s care and support. Elizabeth Baum, an attorney and conservator, offers information on conservatorship and a conservator’s role and responsibilities.
1. What is a Conservatorship?
Conservatorship is a protective legal process in which the Massachusetts Probate and Family Court may appoint a person called a Conservator, whose role is to marshal and manage the property of an individual who is (1) disabled and who requires a substitute financial decision maker either (2) to prevent the property from being wasted or dissipated or (3) so that the financial support, care and welfare of the person is effectuated and managed.
2. How does a Conservatorship work?
The court-appointed Conservator is charged with the responsibility of managing the Protected Person’s income and assets. Any finances managed by the Conservator for the Protected Person needs to be segregated into accounts and titles reflecting the legal Conservatorship. No assets or income may flow through or be co-mingled with the Conservator’s own income or assets. In this way, the Protected Person’s property remains intact and easily distinguishable from the Conservator’s finances. From the Protected Person’s funds, the Conservator pays the Protected Person’s bills and otherwise manages his or her assets.
3. Who can be a Conservator?
There is a list of persons who have priority to be appointed by the Probate Court as Conservator for any particular individual. First is the Attorney in Fact nominated in the Protected Person’s Durable Power of Attorney. Second in the priority list is a fiduciary (e.g., a Guardian) already court-appointed for the benefit of the Protected Person. Third in the priority list would be a person nominated by the Protected Person. For good cause, the Court always has the ability to determine that the above individuals are not appropriate and therefore to appoint any other individual to act as a Conservator for the benefit of a Protected Person.
4. What does a Conservator do?
A Conservator is a court-appointed fiduciary who once appointed, has the authority to collect, hold and retain assets of the Protected Person’s estate. In addition, the Conservator has the duty to manage and allocate and invest assets of the Protected Person, to pay the debts and ongoing bills of the Protected Person. The Conservator may delegate the management of investments to an agent, but must exercise reasonable care and caution in appointing an agent (e.g., financial planner, accountant, broker, etc) and the Conservator is ultimately responsible for the proper management of the assets of the Protected Person.
5. If I become Conservator, am I personally financially responsible for the Protected Person?
No. The Conservator is not personally liable for Protected Person, but must pay all of the Protected Person’s expenses from the Protected Person’s income and assets. Again, it is vital that the Protected Person’s assets and income remain segregated from those of the Conservator, and that proper bookkeeping is kept by the Conservator.
6. What is the difference between a Power of Attorney and a Conservator?
A Durable Power of Attorney (DPA) is a document in which a competent individual (the Principal) nominates whom he or she would want to manage assets and income should the Principal become incapacitated. In a Durable Power of Attorney, the Principal also can nominate whom he or she would want in place as a potential Guardian of the Person. By executing a Durable Power of Attorney, the individual generally is able to avoid the Court involvement and oversight required in a Conservatorship.
7. If I become Conservator, what are my responsibilities?
Once an individual is appointed by the Court to act as Conservator, she or he has the responsibility to file an Inventory with the Court within 90 days of the Court appointment. In addition, a Conservator’s Financial Plan must also be filed with the Probate Court.
8. If my friend/relative only receives Social Security benefits, is a Conservatorship necessary?
If an incapacitated individual’s only source of funds is Social Security benefits, then it is unnecessary for the Court to appoint a Conservator. Instead, the responsible person can apply through the Social Security Administration (SSA) to be appointed to act as the Representative Payee for their relative or friend. An individual who is appointed to act as a Representative Payee is then required to file an annual financial report directly with the SSA.
9. What is the legal process to obtain a Conservatorship?
In order to obtain a Conservator, an interested individual or agency must petition the Probate & Family Court. In addition to filing a Petition for Appointment of Conservator, the Petitioner must also file a Medical Certificate signed by a licensed professional (as outlined in the statute) who has evaluated the proposed Protected Person within thirty days prior to the filing of the Petition. A Bond for the proposed Conservator also must be on file with the Court. Notice is given to all interested persons as well as to the proposed Protected Person. A Court hearing date then is scheduled. At the hearing, the Petitioner must furnish an updated Medical Certificate signed by a licensed professional who has again evaluated the proposed Protected Person within the past thirty days from the date of the hearing. The Medical Certificate must support the need for the Conservatorship (see criteria for a Conservatorship outlined in # 1 above). The Judge then determines if the Conservatorship is the criteria to appoint a Conservator has been met, and if so, appoints the appropriate Conservator (see answer to # 3 above as to who can be a Conservator). A Conservator can be appointed either as a Temporary Conservator (for a period of no more than 90 days) or a Permanent Conservator. Hiring an attorney can be extremely helpful for all persons involved in order to facilitate/stream-line the court process of obtaining a Conservator.
10. What are the alternatives to a Conservatorship?
Alternatives to a Conservatorship include a Durable Power of Attorney, in which an individual nominates a potential substitute decision maker in case of his or her incapacity (see # 6 above). If the person under a disability receives only Social Security benefits, a Representative Payee can be appointed by the Social Security Agency (see # 8 above). Finally, if the disability does not impair the individual’s capacity too greatly, an independent bill payer can be hired by the family to write the checks and maintain the check ledger while the disabled individual retains check-signing authority. One other alternative, in the appropriate circumstances, a joint account can be set up for the sole purpose of the convenience of paying the disabled person’s bills.
Attorney Elizabeth Baum, JD, MPH, maintains a law practice focusing exclusively on fiduciary law on behalf of the elderly, mentally ill and developmentally disabled. Attorney Baum has been appointed by Probate Judges over the past twenty-five years to act as fiduciary (Guardian/Conservator/Trustee) for many elderly and disabled persons. As a fiduciary, Ms. Baum works closely with the people for whom she advocates, as well as with clinical team members and families in order to provide effective and compassionate care. She also works with a forensic accountant, a bookkeeper, and financial advisors to maintain and invest Protected Persons and Beneficiaries finances.
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