A “Conservator,” on the other hand, is responsible for managing the Ward’s property, assets, and finances. The Ward’s Conservator is responsible for providing an accurate annual accounting to the Court of all finances and any distribution of assets.
Court-appointed legal representation is required for the Ward. Usually, the proposed Guardian/Conservator hires his/her own attorney as well. The Court will require an initial hearing and annual reports.
Guardianships and conservatorships can usually be avoided if a Trust is firmly in place before a person becomes incapacitated. (See “Trusts.”)
- – A Trust does not die. For a married couple, when one of the Trustees passes away, usually the other spouse just takes over. When both of the Trustees pass away, a Successor Trustee (as designated in the Trust) assumes the role of Trustee.
- – There is no need for a probate.
- – Provision can be made in the event one or more of the Trustees becomes incapacitated.
- – A Trust is private. Assets and/or the distribution of the assets are never filed with the Court, as is the case with a Will.
- – A Trust stays in effect even if one or both of the Trustors become incapacitated. The Successor Trustee takes over, and there is no need for a guardianship or conservatorship.
- – A Trust, like a Will, can be changed if you change your mind or your life circumstances change.
- – A Trust can also have tax advantages not available with a Will.
- – A Trust can be used to distribute money to a minor child without having to go to Court. The Trustee manages the child’s money until the child reaches age 18 or reaches a certain age you specify in the Trust.
If a Conservator is appointed, the Conservator must provide the Court with an annual accounting as to what has been done with the assets. Many of the Ward’s expenditures have to be approved by the Court prior to spending money or selling assets. Each request may require a Court hearing. Once a diagnosis of dementia or related incapacity is given, a Conservatorship will often be necessary. At this point, it is too late to get a Power of Attorney or a Trust.