Having an adult declared incompetent is a challenging task. Whether the adult has lost the capacity to handle their finances, the ability to make rational personal decisions, or both, you’ll need certification letters from a doctor and/or psychologist, and you’ll need to petition the court for a conservatorship. Simply put, it’s not enough to have the incapacitated adult declared incompetent—you’ll need to provide the court with a solution for someone to step in and handle his or her affairs.
In a conservatorship, the court appoints a family member, friend, or organization to care for an incapacitated person (conservatorships are also used to care for minors, but that’s beyond the scope of this discussion). If the incapacitated person (referred to as the protected person) is completely incapacitated, the court will usually order a general conservatorship. If the protected person is partially incapacitated but retains the rational thought to handle some of their affairs, the court may order a limited conservatorship. In a limited conservatorship, the judge will confine the conservator’s responsibilities to only the areas where the protected person needs assistance.
Whether the conservatorship is general or limited, there are two types of conservators:
- Conservator of the estate – in this case, the conservator is given control of the protected person’s assets and financial accounts.
- Conservator of the person – a conservator of the person is given the authority to make important medical decisions and ensure the protected person’s basic needs are met (living arrangements, food, clothing, transportation, etc.).
Depending on the situation, the judge may appoint a conservator of the estate, a conservator of the person, or both. Note that cases that include a conservator of the person are sometimes called guardianships, and the conservator would be the protected person’s legal guardian.
How to initiate a conservatorship
If you have a family member or friend who is mentally incompetent and needs assistance in handling their affairs, it’s always best to start by having a conversation with the adult’s family. In the ideal scenario, the family will agree that a conservatorship is necessary, and they can come to a consensus on who is the best candidate to serve as the conservator. Nothing slows down a conservatorship case more than family members who contest the conservatorship or disagree on who should serve as conservator.
Next, try to have an open conversation with the adult in question. If he or she is open to the conservatorship and willing to submit to the necessary evaluations, the court process can be significantly easier. If the incapacitated adult is unwilling, irrational, or hostile, you’ll have to proceed with the conservatorship proceedings against their will.
When you’re ready to initiate the conservatorship process, here’s what to do:
- Hire an attorney – while there are some legal proceedings that you can handle on your own, this isn’t one of them. You’ll need an experienced attorney to guide you through the complex conservatorship process and represent you in court.
- File a petition for conservatorship – your attorney will file a petition for conservatorship with the county probate court in the county where the protected person lives. When the court clerk accepts the petition, he or she will schedule a hearing.
- Serve a notice of probate – you’re required to notify all interested parties of the conservatorship proceedings at least 30 days before the hearing. Serve a notice of hearing to the interested parties by mail or personal delivery, and file a proof of notice with the court.
- Get an attorney for the protected person – taking away an adult’s ability to make their own decisions isn’t a light matter, and the law requires that the protected person have an attorney to represent them throughout the conservatorship proceedings. If the protected person has sufficient assets to afford a personal attorney, you can use estate assets to pay for the attorney. If the protected person can’t afford an attorney, the court will appoint one for them.
- Arrange for a medical and/or psychological evaluation – if the protected person has a physician or psychologist who has been treating them, these are the best professionals to approach for an evaluation and certificate of incapacitation. If there’s a potential conflict of interest, you can use a third-party, unbiased physician or psychologist. Either way, the professional will fill out a certificate of incapacitation that you can submit to the court, and the court has the right to summon that professional to court for expert testimony when necessary.
- Cooperate with the court investigator – some states require the court to send an investigator to interview and evaluate the prospective protected person. If a court investigation is necessary in your case, you’ll need to pay the investigator’s fee when you file the initial petition for conservatorship. Depending on the situation, the investigator may also interview individuals who are close to the protected person.
- Attend the hearing – at the initial hearing, the judge will determine if a conservatorship is necessary, and he or she will assess whether you’re the best qualified candidate for the role as conservator. The judge will usually try to speak with the prospective protected person in the courtroom or by video conference to personally gauge his or her mental capacity, and the judge will assess all of the supporting evidence (the certification, statements by the protected person’s attorney, your testimony, and any testimony from other interested parties). As long as everything is in order, the judge will issue an order for conservatorship and provide you with a letter of authorization. If additional due diligence is required, then the court may schedule a follow-up hearing.
- Complete any required training – after you’ve received your letter of conservatorship, you may be required to complete a state-approved training course. Depending on the value of the protected person’s estate, you will probably need to post a bond, too. Last of all, you’ll want to quickly distribute certified copies of the court order to the protected person’s financial institutions so that you’re authorized to work with them as you fulfill your duty of care to the protected person.
An alternative to conservatorship
While conservatorship proceedings are long and costly, issuing a durable power of attorney is significantly faster and cheaper. Most attorneys should be able to draft a power of attorney contract in less than an hour, and simple powers of attorney can sometimes be handled on your own without an attorney. With a general power of attorney in-hand, the designated agent should be able to handle all of the important tasks that a conservator would.
The challenge with issuing a power of attorney is that the principal (the individual issuing the power of attorney) must be of sound mind. If he or she is mentally incompetent at the time the contract is drafted and signed, the court will invalidate the agreement. As such, a power of attorney needs to be issued in advance, usually as part of a comprehensive estate plan.