Conservatorship

A conservatorship allows a court to appoint a guardian for an adult who becomes incapacitated due to an injury, advanced age, mental illness or other medical condition. Family members may seek conservatorship to manage the personal and financial affairs of an incapacitated relative.

Terry Turner, writer and researcher for RetireGuide
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APA Turner, T. (2022, July 20). Conservatorship. RetireGuide.com. Retrieved August 14, 2022, from https://www.retireguide.com/retirement-planning/elder-law/conservatorship/

MLA Turner, Terry. "Conservatorship." RetireGuide.com, 20 Jul 2022, https://www.retireguide.com/retirement-planning/elder-law/conservatorship/.

Chicago Turner, Terry. "Conservatorship." RetireGuide.com. Last modified July 20, 2022. https://www.retireguide.com/retirement-planning/elder-law/conservatorship/.

What Is a Conservatorship?

Conservatorships — also known as adult guardianships in some states — are a legal process that allows a court to appoint a conservator or adult guardian to manage the medical and financial needs of a person who is judged incapable of making decisions for themselves.

Conservatorship is a focus of elder law in the United States. According to AARP, about 1.3 million American adults are in some form of guardianship or conservatorship in the United States. Up to 85% of these adults are over age 65.

Key Figures in a Conservatorship
Conservatee
A conservatee is the person who the court determines is incapacitated to a point that they can no longer make decisions on their own.
Conservator of the Estate
A conservator of the estate is a guardian appointed to oversee the incapacitated adult’s financial affairs.
Conservator of the Person
A conservator of the person is a court-appointed person given the power to oversee medical decisions and personal daily activities of the incapacitated person.

Conservatorships may be sought by family members when a relative can no longer make decisions for themselves due to advanced age, mental decline or illness, injury or other medical condition that leaves them incapacitated.

How Does a Conservatorship Work?

The procedures for conservatorship vary from state to state, but they all require a court hearing. This may be in a probate court, family court or other type of court, depending on a particular state’s laws.

All interested parties typically must appear in court and make a case for or against conservatorship over the proposed conservatee.

The people requesting conservatorship must present medical paperwork to back up their case for appointing a guardian. The proposed conservatee must also be given an opportunity to present their case against conservatorship to the judge, magistrate or other decision-maker under state law if they choose.

If the court approves a conservatorship, the conservatee has the legal right to appeal the decision.

Virtually all court rulings in favor of setting up a conservatorship are based on mental capability. Courts rarely grant a conservatorship based solely on a person’s physical incapacity.

Costs Associated with Conservatorships

Costs for setting up a conservatorship can vary widely depending on where you live, limitations — or the lack of limitations — on attorney fees and other factors.

In most cases, there are a handful of specific fees to weigh when considering a conservatorship.

Conservatorship Fees and Other Costs
Attorney Fees
The court will appoint an attorney for the proposed conservatee — in some states, the attorney and proposed conservatee must have a pre-existing lawyer-client relationship. Attorney fees vary widely. Some states may set limits on how much attorneys can charge for conservatorship cases, but other states may not.
Filing Fees
Filing fees are part of the court costs for a conservatorship hearing. These are paid to the court and vary by state. If you have a lawyer file the conservatorship paperwork for you, you’ll still have to pay the filing fee plus the attorney’s fee for their service.
Medical and Other Professional Fees
All conservatorship hearings require medical, psychological or other professional examinations and reports detailing the extent of the proposed conservatee’s incapacity. These professionals are typically appointed by the court, but the fees are passed along to the parties in the conservatorship.
Service Fees
State laws typically require the proposed conservatee’s closest relatives be notified of conservatorship hearings. This may require hiring a process server to hand-deliver a copy of the original conservatorship petition to each relative, which can be expensive. Some states will allow delivery by mail.

These are just the court-related costs of setting up a conservatorship through a court. There are ongoing costs associated with managing the financial and medical affairs of the conservatee for the duration of the conservatorship, which in the case of an older conservatee, may be for the rest of their life.

These fees vary depending on the state and services.

Examples of Court-Appointed Conservatorship Services and Fees
ServiceFee Charged
Base rate$180 month
Real estate or invested asset management in excess of $100,000 in value$130 per month
Receipts and management of Social Security or VA benefits, pensions, annuities and other monthly income4% of revenues
Real estate sales3% of net sale receipts
Special conservator authority$130 per hour plus $85 per month
Additional nonprofessional fees$30 per hour
Terminating a conservatorship$600 (one-time fee)
Based on schedule of fees from Guardian Finance and Advocacy Services, a nonprofit provider of fiduciary services, January 2022

Costs can vary widely from state to state for managing a conservatorship. In many cases, a family member takes on the role of conservator and may be compensated. Compensation must be reasonable as determined by the court.

The conservator typically has to file an annual report showing how the conservatee’s assets were used during the preceding year. This requires showing all sales, investments and how the money was spent. The conservator may be able to do this themselves, but they may require a professional accountant or lawyer to produce the report, creating added costs for the conservatorship.

Initial costs for setting up the conservatorship typically come from the conservator. But a court may order the conservatee’s estate to reimburse the conservator. Costs for a conservatorship once it’s established typically come from the estate of the conservatee.

Advantages and Disadvantages of Conservatorships

Conservatorships are expensive and often complicated. But in some cases, they may be the only option available.

You should consider the pros and cons of conservatorships, and consider alternatives before the need for a conservatorship arises.

Pros and Cons of Conservatorship
Pros
  • Court supervision of conservators protects incapacitated person’s assets
  • Periodic, court-required reports provide oversight on conservatee’s health and resources
  • Court can require conservator to check in before making certain expenditures
  • If needed, conservator must post a bond to cover losses from their mishandling of the estate
Cons
  • Conservator may make poor choices or decisions about conservatee’s finances or health care
  • More expensive than alternatives such as a living trust or durable power of attorney
  • Loss of privacy for conservatee due to reports being open to the public
  • Time-consuming due to detailed paperwork and record-keeping

Conservatorship Alternatives

The simplest alternative to conservatorship is to prepare advance directives and other advance planning before you may become incapacitated.

Many of these alternatives can be adopted in the early stages of retirement planning and updated as needed long before you reach the point where a conservatorship becomes inevitable.

Alternatives to Avoid Conservatorship
Financial Durable Power of Attorney
A financial durable power of attorney lets someone you appoint, known as an agent or proxy, make financial decisions for you if you are incapacitated. This can include paying your bills, filing your taxes, managing your financial affairs, and making bank deposits and withdrawals. You have the power to pick and choose what powers you want your agent to have.
Living Will
A living will — also called a health care declaration — is a written, legal document that details your wishes for the type of health care you want or don’t want if you become incapacitated. This can be used with a medical durable power of attorney to make sure your wishes are carried out.
Medical Durable Power of Attorney
A medical durable power of attorney — sometimes called a durable power of attorney for health care —allows you to choose someone to make medical decisions on your behalf if you become incapacitated. These decisions can include those involving medical treatments, health care providers, surgery, medication and the type of end-of-life care you receive.
Revocable Living Trust
A revocable living trust lets you name a successor trustee to manage your affairs should you become incapacitated. The trust provides a directive for how your estate, finances, personal needs and medical affairs should be managed.

If properly executed, any of these alternatives will eliminate the need for a conservatorship and the legal costs associated with creating and managing it.

Last Modified: July 20, 2022

8 Cited Research Articles

  1. Benisek, A. (2021, June 24). What Is a Conservatorship? Retrieved from https://www.webmd.com/a-to-z-guides/what-is-a-conservatorship
  2. Miller, K. (2018, October 4). What Happens When a Guardianship Gets Contentious. Retrieved from https://www.aarp.org/caregiving/financial-legal/info-2018/court-ordered-guardianship-separates-family.html
  3. Alaska Court System. (n.d.). Conservatorship — Background Information. Retrieved from https://courts.alaska.gov/shc/guardian-conservator/conservatorship.htm
  4. Connecticut Probate Courts. (n.d.). Conservatorships. Retrieved from http://www.ctprobate.gov/Pages/Conservatorships.aspx
  5. Family Caregiver Alliance. (n.d.). Conservatorship and Guardianship. Retrieved from https://www.caregiver.org/resource/conservatorship-and-guardianship/
  6. Los Angeles County Department of Mental Health. (n.d.). About Conservatorship. Retrieved from https://dmh.lacounty.gov/our-services/public-guardian/conservatorship/
  7. National Academy of Elder Law Attorneys. (n.d.). Guardianship and Conservatorship. Retrieved from https://www.naela.org/web/consumers_tab/consumers_library/consumer_brochures/law_topics/guardianship_conservatorship.aspx
  8. National Alliance on Mental Illness. (n.d.). Guide to LPS Conservatorship for Family & Friends. Retrieved from https://namila.org/resources/guide-to-lps-conservatorship-family/