What is a conservator?
A conservator is a person appointed by the court to manage the money and property belonging to an adult who is financially incapable. The Oregon statutes define “financially incapable” as being unable to take the actions necessary to manage the person’s income, real property, and other assets effectively. A medical diagnosis, such as Alzheimer’s Disease, traumatic brain injury, bipolar disorder, or Down syndrome, is not the same as a legal finding that the person is financially incapable. A person who makes bad investment decisions, who has been the victim of a financial scam, or who is not paying bills may not be financially incapable. A conservator can also be appointed for a minor child (under the age of 18).
How is a conservator appointed?
The process for appointing a conservator is very similar to the process for appointing a guardian. The attorney files a petition with the court that includes facts showing the respondent is financially incapable and has money and property with a combined value of over $10,000. In many cases, the petition asks the court to appoint both a guardian and a conservator. The respondent has to be personally served with a copy of the petition together with a notice about his or her rights. Copies of the petition and notices about the conservatorship case have to be mailed to the respondent’s closest relative(s) and to other people and agencies required by the law. The respondent can object to the conservatorship or to the proposed conservator. Other people can also object. Objections are filed in a relatively small number of cases.
If the petition is for a conservator only, the judge generally does not appoint a court visitor. If no objections have been made by the end of the notice period, the judge usually will sign a judgment appointing the conservator. Once a conservator has been appointed, the respondent is called the protected person.
How does the judge decide whether someone needs a conservator?
The judge will hold a hearing if someone files an objection with the court by the end of the notice period. At the hearing, witnesses will testify and the parties can present additional evidence. The judge then decides whether the respondent is financially incapable, whether the respondent has money or property that needs to be protected, and whether the proposed conservator is qualified and suitable. In some counties, the parties are required to try to settle an objection by having a mediation session before the judge will hold a hearing.
What happens when there is an emergency?
The judge can appoint a temporary or emergency conservator for up to 30 days if there is strong evidence of an immediate and serious danger to the respondent’s money or property. In most cases involving a temporary conservator, the petitioner also asks the court to appoint a conservator for an indefinite period. Although not all courts follow the same procedures, there is usually a short hearing on the temporary conservatorship and the petitioner is required to provide supporting evidence, such as a sworn statement describing nature of the emergency and the threat to the respondent’s money or property. The most common reason for asking the court to appoint a temporary conservator is to stop or prevent financial abuse.
What powers and duties does the conservator have?
The conservator has to post a surety bond before he or she can take control of the protected person’s income and assets. The amount of the bond is set by the court based on the value of the protected person’s assets and annual income. The conservator must find out what income and assets the protected person owns, file an inventory with the court, and take the steps needed to preserve or protect the assets. The conservator has to use the income and assets to pay for the reasonable expenses of the protected person.
The conservator must file an accounting with the court every year that lists all of the income received and the expenses paid during the past year. Canceled checks or check images and account statements are attached to the accounting. Copies of the accounting and notices have to be mailed to the protected person and to other people and agencies required by law. The conservator is required to get specific permission from the court before doing certain things with the protected person’s money and property. For example, the conservator has to have the court’s approval in order to sell the protected person’s residence, to withdraw money from a restricted account, or to buy property from the protected person for the conservator’s own use.
The courts in Multnomah County, Clackamas County, Marion County, and Lane County require a conservator who is not a professional fiduciary to take a class that has been approved by the court. The 90 minute class is presented by Guardian Partners and costs $100 in 2018. You can find more information about the class at the Guardian Partners website, guardian-partners.org.
Who will be the conservator?
In most cases, a close relative is appointed to serve as the conservator. The same person may be both the conservator and the guardian. Although the conservator is not required to live in Oregon, it may be difficult for a conservator who lives far away to carry out his or her duties if there are assets in Oregon that need to be monitored closely. When a close relative is not available or suitable, or when family members disagree about who should be the conservator, the court may appoint a bank or a trust company, the state Department of Veterans’ Affairs, or a professional fiduciary to serve as the conservator. Professional fiduciaries may have experience in areas such as nursing, social work, care management, banking, bookkeeping, and law, and are available to act as conservators for financially incapable people. A petition asking the court to appoint a professional fiduciary as the conservator has to include proof that the professional fiduciary is certified by the Center for Guardianship Certification. You can find more information about professional fiduciaries at the web site of the Guardian/Conservator Association of Oregon, www.gcaoregon.org. The attorneys at The Elder Law Firm represent professional fiduciaries in some cases and work with them in others.
How much does a conservatorship cost?
The out-of-pocket costs to begin a conservatorship are the filing fee, which ranges from $265 to $1,109 (in 2018) depending on the amount of assets, plus the expenses for having the respondent personally served, getting certified copies from the court, etc., which are usually around $200. In some cases, it is necessary to pay for a medical or psychological evaluation or other assessment of the respondent. There will also be an annual premium for the bond and filing fees for annual accounts, which can be paid out of the protected person’s funds.
As in guardianships, the attorney fees are based on the amount of time spent. The attorney fees will be higher in emergency situations and in contested cases because more time and work is required. If the court appoints the conservator, an attorney who represents the petitioner, the conservator, or the protected person can submit a detailed description of the time spent on the case and the out-of-pocket expenses to the court and ask the judge to approve having those legal fees and costs paid out of the protected person’s funds. The judge can also approve payment for the time spent by a professional fiduciary or by a relative or a friend who is serving as the conservator.