Copyright © 1998
Return to Court Library MenuFunding for the development, initial printing and distribution of this handbook was provided through a grant by the Michigan State Bar Foundation. The Michigan State Bar Foundation's funding for this publication does not constitute an endorsement of any position expressed in it. The views expressed by the author are his own.
Special thanks to John Kirkendall, Linda Durham and Andrew Ehrgood for their valuable input and support during various stages of this project.
1. Conservatorship: The Basics
A. Record Keeping7. Inventory
A. Collecting Money Due9. Selling or Mortgaging Real Estate
10. Contact with the Individual
A. Change of Residence - Individual or Conservator14. Death of Individual
----------------
You may have been appointed by the court as conservator for another adult, or you may be thinking of becoming a conservator. Whether you are a relative, a professional or a volunteer, this is an important job. There is potential for invaluable contribution to the welfare of the individual and personal satisfaction for you.
Being a conservator is not a simple role, but one demanding responsibility, patience, ability to work with finances and sensitivity. There are a number duties you owe to the person you have agreed to assist. There are also duties you owe to the court.
Basically, a conservator is appointed by a probate court for an individual who is unable to handle his or her own financial affairs. The conservator has control of all or part of the other person's income, savings and property. The conservator has a responsibility to spend and invest the money for the benefit of the individual.
How complicated serving as conservator will be, and how much time it will take, depend on a number of factors: the value of the property, the types of assets, the needs of the individual, whether there are dependents, and the extent of cooperation among family members.
As a conservator, there are specific powers and responsibilities you have. You should be aware of these powers and duties and how you are to exercise and fulfill them.
When an individual loses control of his or her income and property, it has obvious effects on his or her sense of independence. You should recognize this, and try to minimize its negative effects.
To help you in your new and challenging role, the court has prepared this guide to answer questions you may have. Most of the information is based on state law and court rules. When an issue is not addressed by these sources, we have tried to establish good policy within the spirit of the law. To avoid labels, we refer to a person for whom a conservator has been appointed as an "individual."
As conservator, you have the right to hire professionals such as lawyers, accountants and investment advisors to help you with your tasks. If questions arise for which you cannot find an answer - about your duties, an individual's rights, or resources available in the community - please call upon the court.
This handbook focuses on conservatorships for adults under the Probate Code. If an adult suffers from a developmental disability, somewhat different provisions of the Mental Health Code apply to appointment of a guardian of the estate.
A conservator can be appointed by a probate court, or in some instances, by the family division of circuit court. For simplicity, all references in this handbook are to the probate court.
The book includes certain court forms used in conservatorship proceedings and makes reference to others. Each type of court form has a number, such as PC 10, found at the bottom left-hand corner. Not every form is used in every case. Blank forms are available from the probate court office.
What is a conservator?
A conservator is a person or bank appointed by a probate court after a court hearing, and given power and responsibility to handle some or all of another individual's assets and financial affairs.
Once appointed, a conservator takes title to the individual's assets subject to the conservatorship and manages them for the benefit of the individual.
What do assets include?
An individual's assets include income, stocks, bonds, bank accounts, certificates of deposit, real estate, and all other possessions. An individual's assets together are known as his or her estate.
When is a conservatorship appropriate?
The probate court may appoint a conservator for an individual unable to handle his or her financial affairs effectively. If the individual is not the petitioner, it must also be shown the individual is wasting money, disregarding upkeep of property, or not spending sufficient money to satisfy his or her own care needs, or the needs of dependents.
May an adult request a conservator be appointed for himself or herself?
Yes, if the individual feels this step would be beneficial. The individual might consider signing a durable power of attorney instead.
What is a durable power of attorney?
A durable power of attorney is a voluntary, private arrangement through which an individual gives to another (called an agent or attorney-in-fact) the power to make financial decisions and sign financial documents for him or her.
In writing a durable power of attorney, you can choose whether to make these powers effective immediately, or effective only if you become mentally incapable of handling your financial affairs.
How is a durable power of attorney different from a conservatorship?
Under a durable power of attorney, the individual has a number of rights - to choose the agent, to specify what property is subject to the arrangement, to give directions how the agent is to perform his or her duties and to set forth how disability will be determined.
Unlike a conservatorship, which is a public proceeding, the durable power of attorney is a private arrangement. On the positive side, a conservatorship is subject to some court oversight through the filing of annual accounts.
An individual considering a durable power of attorney should discuss the issue with a lawyer.
If a conservator is appointed, can the conservator revoke an existing durable power of attorney?
Yes.
What is the difference between a conservator and a guardian?
A guardian may have broad duties with respect to the care and custody of an individual. For instance, a guardian may have responsibility to determine where an individual lives, to ensure personal needs are met, to authorize medical treatment and to arrange for social services.
A guardian may have responsibility for finances if a conservator is not appointed.
A conservator does not have power to consent to medical treatment, to choose where an individual lives, or to control day-to-day activities.
Can an individual have both a guardian and a conservator?
Yes. There are separate court petitions for guardianship and conservatorship, though the petitions may be considered by the court at the same hearing. An individual may need only a guardian, only a conservator or both. If the court determines an individual needs a guardian and a conservator, the court can appoint the same person to fill both roles.
What is a protective order?
If an individual is unable to handle his or her financial affairs, but an ongoing conservatorship is not necessary, the probate court can authorize or approve a single transaction such as selling a home, signing a mortgage, entering into a life-care contract or creating a trust.
The petition form and procedure for obtaining a protective order is the same as that for conservatorship. However, after issuance of the protective order, court involvement may end.
What is representative payment?
If an individual is unable to handle his or her monthly Social Security or Supplementary Security Income check, another person can apply to become his or her representative payee.
Application is made to the Social Security office; there are no court proceedings. A representative payee has an obligation to use the funds for the benefit of the individual, and to account annually to the Social Security Administration how the money was spent.
If an individual does not have other income or property, a conservatorship will probably not be necessary.
Must a conservator also become a representative payee?
Depending on circumstances, a conservator may have to also become representative payee. Further information on representative payment is provided in chapter 6.
Can the court appoint more than one person as conservator?
Yes. The persons are then called co-conservators.
Do co-conservators need to make decisions together?
Ideally, the court order establishing the conservatorship will specify whether co-conservators must act together, or whether each can act independently.
What is the initial role of the court in conservatorship proceedings?
The court process has three goals: 1) ensuring an individual for whom a petition is brought needs a conservator; 2) establishing the conservator's powers to reflect the demonstrated needs of the individual and to encourage self-reliance; and 3) appointing a person to serve as conservator who is willing and able to handle the task.
Does the court have a role in protecting the individual from a conservator inadequately performing his or her role?
Yes, in two ways. First, upon appointing a conservator, the court can require a conservator to file a bond, a form of insurance against carelessness or misdeeds.
Second, the court requires a conservator to file an annual account, which provides a means of oversight of the conservator's activities.
How else does the court oversee the activities of a conservator?
Certain transactions of a conservator may only be taken with specific court approval. For example, some courts require a conservator to seek court confirmation of the sale of a home or other real estate.
Any fees charged by a conservator for his or her services are subject to court approval.
How might the court's role be summarized?
By law, an individual for whom a conservator is appointed is called a protected person. The court's duty is to help ensure the term is a reality: that an individual is better off with a conservator than on his or her own.
Return to Calhoun County Courts Homepage
Last Updated 1-1-04
Send your comments, questions and suggestions to Phil Harter at 161
E Michigan Avenue, Battle Creek, Michigan 49014 or
e mail to pharter@calhouncountymi.gov