As children, we think our parents are invulnerable and do not need assistance from us. The truth is that as our parents age, they may need our assistance. This is especially true, if our parents did not plan ahead for who will manage their financial affairs when they are no longer able to do so. In Michigan, the one answer for these individuals is a conservatorship.
What is a conservatorship?
In simple terms, a conservatorship is when the probate court in the county where the person to be assisted resides appoints another individual to manage the financial affairs. The appointed person is referred to as a conservator. The person who needs the assistance is referred to as either a ward, a protected person, or a legally incapacitated individual. A conservator is different than a guardian. A conservator will manage the finances and assets of the ward, while the guardian assists with the decisions involving medical care, daily care, and where the ward will live. One person can fulfill both roles; however, each position requires the court’s appointment. Because a conservatorship involves handling another’s finances, there is the potential for abuse or acting outside of the ward’s best interests. This is why all conservatorships are supervised by the probate court and require annual reporting.
How is a conservator appointed?
Usually, a family member or other interested party (usually an heir) will ask the probate court to be appointed as a conservator. Sometimes, the person needing assistance can file their own petition with the court as well. Under Michigan law, conservator can be appointed in the following circumstances:
- The individual needing to be protected is unable to manage their financial affairs due to a physical illness, a mental illness, chronic use of drugs, disability, mental incompetency, or confinement; and
- Money is necessary to finance the support, care or welfare of the individual to be protected, requiring a conservatorship to do so; or
- The individual to be protected owns property that would be wasted without proper competent management.
When a petition to appoint a conservator is filed, all interested parties (family members and/or heirs) will be notified. Each interested party has an opportunity to be heard by the probate court and to present evidence supporting or opposing the formation of the conservatorship or the appointment of a particular conservator. If the court finds sufficient evidence to appoint a conservator for the protection of the named individual, the court will issue an order appointing a specific person.
What are the conservator’s duties?
The primary role of the conservator is to competently manage the assets of the protected individual. The conservator will also protect the individual from financial exploitation by creditors, salespeople, or family members. In doing so, the conservators owe a fiduciary duty to the protected individual. This means that the conservator must act in the best interests of the protected individual’s estate. In addition, the conservator must keep accurate records of all income and records and receipts of all expenses to support the annual accounting that must be provide to the court each year.
What to do if you receive a petition?
If you are a family member and receive a petition to appoint a conservator, you should consult with an attorney immediately. You may be entitled to the appointment or have information on why another individual should not be appointed. Professional conservators are often expensive to maintain and can deplete the resources available for the protected individual’s care.
In addition, there are other options available to you if your goal is to protect a family member against being taken advantage of. An experienced estate planning attorney can consider your circumstances, advise you of your options and recommend the best option for your needs.
If you have received a petition for the appointment of a conservator, call Michigan Gun Law today for your free initial telephone consultation.