A conservator is a person who is appointed by a court to manage the estate of a protected person who is legally incompetent to manage his or her own financial affairs. A conservator can be a family member, trust company, or other professional fiduciary. Before a conservator is appointed, the court must find that the proposed ward has assets or income that may be wasted or dissipated if a conservator is not appointed. Utah law recognizes conservatorship as a less intensive form of supervision over another person. By definition, a conservatorship applies only to the property and finances of the ward, or the person over whom a guardian or conservator is appointed. In some situations, we will recommend conservatorship as an alternative that allows greater independence for the person to be protected.
Utah Conservator Responsibilities
Conservatorship typically transfers the following responsibilities to the conservator:
• Organizing, gathering and protecting assets
• Arranging appraisals of property
• Safeguarding property and assets from loss, whenever possible
• Managing income from assets
• Making appropriate payments
• Obtaining court approval prior to any sale of major assets
• Reporting to the court the estate’s status on a regular basis
Reasons for Appointing a Conservator
A conservator may be appointed only if the respondent is unable to manage her or his property and affairs effectively because of, but not limited to:
• mental illness
• mental deficiency
• physical illness
• physical disability
• advanced age
• chronic use of drugs
• chronic intoxication
• confinement
• detention by a foreign power
• disappearance
How does a Conservator differ from a Guardian?
Guardian and Conservator are sometimes used interchangeably. A conservator is sometimes called a “guardian of the property”. This differs from a “guardian of the person or “guardian” under Utah law. The conservator makes financial decisions, and the guardian makes personal decisions for an incapacitated person. Because the duties are different, courts commonly appoint someone as both “guardian and conservator” of an incompetent person.
How is a Conservator or guardian appointed?
Under Utah law, a guardian or a conservator (or both in some cases) can be appointed over an individual when a court determines that the individual is “incapacitated.” Under Utah law, “incapacity” is measured by functional limitations. Being “incapacitated” means that a judge, typically in a Probate court, has made a determination after considering proof of clear and convincing evidence that an adult’s ability to do the following is impaired to the extent that the individual lacks the ability, even with appropriate technological assistance, to meet the essential requirements for financial protection or physical health, safety, or self-care:
• receive and evaluate information;
• make and communicate decisions; or
• provide for necessities such as food, shelter, clothing, health care, or safety.
Additionally, when seeking a conservatorship over an individual it may be necessary to demonstrate that an adult is unable to manage their own property and affairs effectively due to:
• mental illness,
• mental deficiency,
• physical illness or disability,
• chronic use of drugs,
• chronic intoxication,
• confinement (for example, being in jail),
• detention by a foreign power,
• or disappearance; and
The adult in question has property which will be wasted or dissipated unless proper management is provided (or they have people who are legally dependent upon them who need those funds to be protected).
Appointment Process
Every petition for guardianship or conservatorship must be filed with the proper Utah Court and served upon the proposed ward. The petitioner (the person seeking appointment as Guardian or Conservator) must give notice to interested parties, including spouses, adult children and preexisting guardians and conservators. The law requires that the protected person be represented by legal counsel, either of her own choice or, if they don’t have the capacity to make their own choice, then the Court will appoint a lawyer to represent them. In many cases, a court visitor will also be appointed and report to the Court regarding the condition of the protected person, and even seek the appointment of a physician who can examine and report to the court. A public hearing is also required where the parties must appear in person at the courthouse so that the judge can make an informed decision after discussing the implications of the court action with both the protected and the petitioner. This also gives anyone who objects to the appointment, including the protected person, the right to object. The implications of appointing a guardian or a conservator are so serious that the protected person can ask to have a jury make the decision instead of a judge.
In Cases of Emergencies
If a real emergency exists, Utah Courts will allow a guardian or conservator to be appointed quickly, with short notice to the involved parties. If the emergency is even more severe, and the Court believes that it is necessary for the best interests of the ward to quickly award the Guardianship or Conservatorship, the Court can do so without sending any notice at all. However, this can only last for a short period of time to avert the emergency. Once the emergency has passed, the petitioner must still petition the court through the normal process to be permanently appointed guardian or conservator. An “emergency petition” is not a short-cut that will allow the petitioner to bypass the strict requirements of the law. It is only a temporary remedy to avert a serious, short-term threat to the health or financial well-being of the proposed ward.
Distributive Duties and Powers Of Conservator.
• A conservator may expend or distribute income or principal of the estate without court authorization or confirmation for the support, education, care, or benefit of the protected person and his dependents in accordance with the following principles:
• The conservator is to consider recommendations relating to the appropriate standard of support, education, and benefit for the protected person made by a parent or guardian, if any. He may not be surcharged for sums paid to persons or organizations actually furnishing support, education, or care to the protected person pursuant to the recommendations of a parent or guardian of the protected person unless he knows that the parent or guardian is deriving personal financial benefit there from, including relief from any personal duty of support, or unless the recommendations are clearly not in the best interests of the protected person.
• The conservator is to expend or distribute sums reasonably necessary for the support, education, care or benefit of the protected person with due regard to:
• The size of the estate, the probable duration of the conservatorship and the likelihood that the protected person, at some future time, may be fully able to manage his affairs and the estate which has been conserved for him;
• The accustomed standard of living of the protected person and members of his household; and
• Other funds or sources used for the support of the protected person.
• The conservator may expend funds of the estate for the support of persons legally dependent on the protected person and others who are members of the protected person’s household who are unable to support themselves and who are in need of support.
• Funds expended under this Subsection may be paid by the conservator to any person, including the protected person to reimburse for expenditures which the conservator might have made, or in advance for services to be rendered to the protected person when it is reasonable to expect that they will be performed and where advance payments are customary or reasonably necessary under the circumstances.
• If the estate is ample to provide for the purposes implicit in the distributions authorized by Subsection (1), a conservator for a protected person other than a minor has power to make gifts to charity and other objects as the protected person might have been expected to make, in amounts which do not exceed in total for any year 20% of the income from the estate.
• When a minor who has not been adjudged disabled under Subsection 75-5-401(1)(b) attains his majority, his conservator, after meeting all prior claims and expenses of administration, shall pay over and distribute all funds and properties to the former protected person as soon as possible.
• When the conservator is satisfied that a protected person’s disability (other than minority) has ceased, the conservator, after meeting all prior claims and expenses of administration, shall pay over and distribute all funds and properties to the former protected person as soon as possible.
• If a protected person dies, the conservator shall deliver to the court for safekeeping any will of the deceased protected person which may have come into his possession, inform the executor or a beneficiary named in the will that he has done so, and retain the estate for delivery to a duly appointed personal representative of the decedent or other persons entitled to it. If after 40 days from the death of the protected person no other person has been appointed personal representative and no application or petition for appointment is before the court, the conservator may apply to exercise the powers and duties of a personal representative so that he may proceed to administer and distribute the decedent’s estate without additional or further appointment. Upon application for an order granting the powers of a personal representative to a conservator, after notice as provided in Section 75-3-310, the court may order the conferral of the power upon determining that there is no objection and endorse the letters of the conservator to note that the formerly protected person is deceased and that the conservator has acquired all of the powers and duties of a personal representative. The making and entry of an order under this section shall have the effect of an order of appointment of a personal representative as provided in Section 75-3-308 and Chapter 3, Parts 6 through 10, except that the estate in the name of the conservator, after administration, may be distributed to the decedent’s successors without prior retransfer to the conservator as personal representative.
How Expensive Are Guardianships and Conservatorships?
It can be very difficult to determine what the ultimate cost of this type of court case will be because of the many variables involved. Sometimes, the proposed ward will object to the appointment and request much more evidence to support the petitioner’s assertion that they are in need of protection. In other cases, different family members may object to the appointment and seek appointment of themselves instead. Also, expert witnesses may need to be hired to provide professional opinions on the condition of the proposed ward. Nevertheless, it is fairly typical for the total cost of a guardianship or conservatorship proceeding to be in the range of $3,000 to $5,000. This figure includes attorney’s fees (for both the petitioner and the protected person), bond premiums (if required), court costs, and witness fees (such as doctors, social workers, or neuro-psychologists). The actual cost of these types of legal proceeding can be significantly higher than those estimates discussed above. However, in many cases, the costs associated with these types of legal proceedings can be recovered from the protected person’s estate if the estate is large enough. In other cases, the Courts will pay for at least some of the expenses associated with the proceedings. Guardianship and conservatorship proceedings in Utah are often complex, costly, and frustrating for the loved ones who are merely trying to help take care of their incapacitated family member. These court actions can seriously impact the freedoms of the incapacitated person. As a result, our laws go to great lengths to ensure that the incapacitated person is protected from someone over-zealously trampling on that person’s rights. It is therefore very important to consult with an attorney before pursuing a guardianship or conservatorship in Utah. Accurate legal advice is crucial when navigating this complicated, but important area of the law. If you have a loved one who can no longer make legal decisions for themselves, you should not hesitate to contact competent legal counsel to discuss the various options for seeking protection for your loved one.
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