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What Constitutes Incapacity for Conservatorship?

What Constitutes Incapacity for Conservatorship?

An old man in sickbed is signing on a document, a young man accompany with him

When an adult becomes incapacitated and incapable of managing his or her affairs, conservatorship transfers the power to manage that adult’s financial affairs or personal care to another person or entity. This legal process of appointing a conservator is known as probate conservatorship. The law requires conservators to act in their ward’s best interests at all times.

When Can a Court Grant Conservatorship?

A court usually grants conservatorship when an adult is incapacitated and unable to make his or her crucial decisions. This might happen when:

  • A sudden medical condition, such as a coma, leads to the legal incapacity of an adult
  • A chronic illness, like dementia, gradually results in incapacity
  • A person with a disability, such as an individual with cerebral palsy, grows into an adult requiring ongoing care from another person.

What Are the Different Types of Conservatorship?

Conservatorship of Estate

This type of conservatorship involves the appointment of a conservator to manage the ward’s finances.

Conservatorship of Person

This conservatorship gives a conservator the power to manage the personal care and lifestyle decisions of his or her ward. If an elderly mother is unable to live on her own, her son may be given conservatorship of her care.

Limited Conservatorship

In this conservatorship, the conservator has the power to make most decisions on the ward’s behalf. The ward retains the power to make certain decisions, such as where he or she wants to live.

Joint Conservatorship

Joint conservatorship involves appointing two people as conservators. A court may, for example, appoint a son and daughter to jointly serve as conservators for a parent.

How is Conservatorship Created?

Only a court order can create a conservatorship. This legal process is usually dealt with in the county’s probate court where the incapacitated adult in question lives. A would-be conservator can obtain conservatorship forms on the website of the state or county probate court or at the county clerk’s office. The ward must be issued with a copy of the forms. The court holds a hearing to determine if a conservatorship is compulsory or appropriate. Providing a physician’s report of the adult in question increases the chances of the court granting conservatorship.

Preventing Conservatorship

Creating a comprehensive estate plan when someone still has capacity is an effective way to prevent a conservatorship. This plan must consist of health care directives, living trusts, and financial powers of attorney created with the help of an estate planning attorney.

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