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Conservatorship - Massachusetts
A conservator is a person appointed by the court to manage the money and property belonging to an adult who is financially incapable. Many states define "financially incapable" as being unable to take the actions necessary to manage the person's income, real property, and other assets effectively.
A medical diagnosis, such as Alzheimer's Disease, traumatic brain injury, bi-polar disorder, or Down syndrome, is not the same as a legal finding that the person is financially incapable.
A person who makes bad investment decisions, who has been the
victim of a financial scam, or who is not paying bills may not be financially incapable. A conservator can also be appointed for a minor child (under the age of 18).
What is the Process?
The process for appointing a conservator is very similar to the process for appointing a guardian. Our attorney files a petition with the court that includes facts showing the respondent is financially incapable and has money and property with amounting to a total determined by law. In many cases, the petition asks the court to appoint both a guardian and a conservator. The respondent has to be personally served with a copy of the petition together with a notice about his or her rights. Copies of the petition and notices about the conservatorship case have to be mailed to the respondent's closest relative(s) and to other people and agencies required by the law. The respondent can object to the conservatorship or to the proposed conservator. Other people can also object. Objections are only filed in a small number of cases.
If the petition is for a conservator only, the judge generally does not appoint a court visitor. If no objections have been made, the judge will usually sign an order appointing the conservator. Once a conservator has been appointed, the respondent is called the protected person.
How Does the Judge Decide?
If someone makes an objection to the petition, the judge will hold a hearing. At the hearing, witnesses will testify and the parties can present additional evidence. The judge then decides whether the respondent is financially incapable, whether the respondent has money or property that needs to be protected, and whether the proposed conservator is qualified and suitable.
What if There is an Emergency?
The judge can appoint a temporary or emergency conservator for up to 30 days if there is strong evidence of an immediate and severe danger to the respondent's money or property. In most cases involving a temporary conservator, the petitioner also asks the court to appoint a conservator indefinitely. Although not all courts follow the same procedures, there is usually a short hearing on the temporary conservatorship. The petitioner is required to provide supporting evidence, such as a sworn statement describing the nature of the emergency and the threat to the respondent's money or property. The most common reason for asking the court to appoint a temporary conservator is to stop or prevent financial abuse.
Duties of the Conservator
The conservator has to post a surety bond before taking control of the protected person's income and assets. The court sets the amount of the bond based on the value of the protected person's assets and annual income. The conservator must find out what income and assets the protected person owns, file an inventory with the court, and take the steps needed to preserve or protect the assets. The conservator has to use the income and assets to pay for the reasonable expenses of the protected person.
The conservator must file an accounting with the court every year that lists all the income received and expenses paid during the past year. Canceled checks and account statements are attached to the accounting. Copies of the accounting and notices have to be mailed to the protected person and to other people and agencies required by law. The conservator must get specific permission from the court before doing certain things with the protected person's money and property. For example, the conservator has to have the court's approval to sell the protected person's residence, withdraw money from a restricted account, or buy property from the protected person for the conservator's own use.
Determining whether or not a loved one needs an appointed conservator is not an easy decision. Even more difficult is when a court appoints a conservatorship which you feel is unnecessary or carries the risk of abuse or other dangers to the well-being of your loved one. Whatever the case may be, our firm can walk you through the legal process for finding a solution or can act as a conservator.
---- RJ Connelly III
"Southern New England's Certified Elder Law Attorney"
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This website includes general information about legal issues, issues affecting seniors and developments in the law. Such materials are for informational purposes only and may not reflect the most current legal developments. These informational materials are not intended, and must not be taken, as legal advice on any particular set of facts or circumstances. You need to contact a lawyer licensed in your jurisdiction for advice on specific legal issues and/or problems.