Conservatorships have been in the news quite a bit over the last few years. It was revealed that former NFL offensive lineman Michael Oher, whose life story was the subject of the hit movie The Blind Side, was put under a conservatorship instead of being adopted by the Tuohy family. Britney Spears was able to persuade the court to end her conservatorship. And legendary comic book creator Stan Lee was placed under a conservatorship in his final years amid disputes over his estate and allegations of elder abuse.
This might make you think that conservatorships are only used by celebrities, but that is far from the case. Many families in the Brandon, Mississippi, area use conservatorships and other estate planning tools to help care for their elderly or disabled loved ones.
What is a conservatorship?
A conservatorship is a legal arrangement that places the financial affairs of an individual, also known as a ward, under the legal supervision of another person, known as a conservator.
The conservator is typically a family member, friend, or professional appointed by the court.
A ward can be someone of any age, but in this blog we’re focusing on older individuals who are placed under a conservatorship.
Why would someone be placed under conservatorship?
In order for the courts to create a conservatorship, there must be evidence the ward cannot manage his or her own property or financial affairs. Under Mississippi state law, this may be because:
- He or she is unable to receive and evaluate information or make or communicate decisions, even with the use of appropriate supportive services or technological assistance;
- Appointment is necessary to:
- Avoid harm to the adult or significant dissipation of the property of the adult; OR
- Obtain or provide funds or other property needed for the support, care, education, health, or welfare of the adult or of an individual entitled to the adult’s support; AND
- The respondent’s identified needs cannot be met by a less restrictive alternative.
Palmer & Slay’s experienced elder law attorneys often work with families in the Brandon, Mississippi area who need to step in and assist an aging loved one with dementia, Alzheimer’s, or an illness that makes managing their finances impossible.
What sort of things can a conservator do on behalf of their ward?
The court order appointing a conservator will outline the exact powers the conservator has, but generally speaking, a conservator has complete control over the finances and property of the ward. Many conservators are asked to:
- Take over banking, investment, and retirement accounts
- Enter into contracts on behalf of the ward
- Pay bills on behalf of the ward
- Buy, sell, or manage property
- Access the ward’s confidential records
However, Mississippi law limits the powers of a conservator to those necessitated by the limitations and demonstrated needs of the ward. Conservators are required by law to encourage the development of the ward’s maximum self-determination and independence, and the courts must consider if there is a less restrictive alternative to conservatorship that would meet the needs of the ward.
No matter what tasks they undertake, a conservator has a fiduciary duty to make the best decisions possible on behalf of their ward.
Are there alternatives to conservatorship?
Getting a court to appoint a conservator is not easy. It is a time-consuming and relatively expensive process. It can also be an emotionally draining affair that pits family members against one another.
At Palmer & Slay, we advise all of our estate planning and elder care clients to do whatever they can to avoid having to go to court to ask for (or fight) a conservatorship. That means proactively executing an advanced health-care directive and a power of attorney for finances.
These documents give the power to make decisions to someone a ward trusts instead of someone the court selects. The documents can specify under what circumstances the appointed agent is authorized to act, and provide some guidance on how decisions should be made.
Preserving Your Wealth. Protecting Your Loved Ones.
Conservators are not just for the rich and famous. Many families find they are necessary when their loved ones reach a certain age.
The Palmer & Slay team can help you determine what steps to take to protect your loved one and their financial interests if they can no longer make sound decisions on their own.
If you have been appointed as a conservator, we can help ensure you meet your fiduciary duties and give appropriate updates to the court system on your actions. Please contact us today to schedule an initial consultation.