Conservatorship: What, Why, and How (It Differs from a Power of Attorney)

a court may appoint a Conservator to handle your finances and/or make certain decisions about your person

Anyone may petition the court to have you placed under the control of another. The petitioner does not have to have any relationship with you in order to do so. It may be a social worker in a rehabilitation center, hospital, someone in government or a politician, a well-intentioned (or otherwise) friend or stranger.

The appointment of another person to handle your affairs may be against your wishes, and in that case, is known as "involuntary".

In the event a petition is filed in court, the court has certain procedures it must follow, as your rights may be affected, should a Conservator be appointed.

For example, the court must provide you with notice, and an opportunity to have an attorney represent you at the hearing, which must be held to decide your legal competence or capability. In addition, there are certain evidentiary requirements that must be met at the hearing. The evidence must prove, in accordance with your state's required standard of proof, that you are incapable or incompetent of managing your own affairs.

After meeting due process requirements set out by your state's statute, the court will hold an evidentiary hearing.

Should the court agree with the petitioner that you are either incapable of managing affairs of a personal nature, or affairs of a financial nature, or both, it will issue a decree that will strip you of your rights to continue to manage the areas of your life in which the court has found you to be incapable.

This is very different from your having appointed a Power of Attorney or having a living will.

If you have been determined by court decree, after an evidentiary hearing, to be incompetent or incapable, contracts that you enter, or decisions that you make (such as entering into marriage) may be voidable by the person designated by the Court to make decisions in your behalf.

It is no longer your decision to make as to where you reside. The court appointed agent makes those types of decisions for you. You may be thinking, "What if I had given a power-of-attorney" to another...wouldn't that suffice?" Usually, no.

In short, most state statutes provide that the court-appointment of an Conservator would invalidate any prior appointment by you of an attorney-in-fact(where the authority overlaps). State statutes allow you to designate, WHILE YOU ARE COMPETENT, whom you would wish to act for you as either Conservator of person or estate, or both, in the event you became incapable or incompetent.

This is a very important Advance Directive to have. For a link to the Connecticut statute concerning this topic, click Conservatorship statutes

It can happen that outsiders, for political or other reasons, might choose to petition the court and have a hearing to strip you of your rights. For example, if you are temporarily residing in a nursing home, and you decide you wish to return home, the nursing home may petition the court to strip you of your right to make the decision to return home, believing it is acting in your best interest. If you have designated whom you would want to make decisions for you in the event of your court decreed incompetence or incapacity, the court will appoint your choice of Conservator, rather than the petitioner or a stranger. To avoid being "managed" by someone you don't want to make decisions for you, it is important for you to take the step of executing a Designation of Conservator in the Event of Incapacity.

This Advance Directive does not strip you of any of your rights when you sign it. It merely designates whom you would want to empower with decision-making in your behalf in the event the court determines you to be incapable or incompetent of managing your own affairs at some point in the future.

Designating a person of your choice offers you the best "insurance" that the person acting for you will take an active interest, and will make certain that your needs (or wants) are best met.

You should have a serious conversation with the person you designate to act in this capacity regarding the "What-ifs" so that your wishes might be best addressed should you become incompetent or incapable.

In Florida, you might recall, Michael Schiavo became the court appointed agent for his wife, Terri. However, she, herself, had not appointed him.

You might also remember that Governor Jeb Bush tried to intervene and usurp the court's appointment of Michael Schiavo. When he failed, Congress got involved, as did President Bush.

Had Terri Schiavo, while she had been capable of doing so,designated a Conservator in the Event of Incapacity, the legal battle that ensued could have been avoided.

Further, to prevent an unintended battle between the application of state and federal law, this Advance Directive should also contain a HIPAA Release.