December 12, 2017
Can I Avoid the Need for a Conservator?
What would happen to your finances if you were unable to make decisions for yourself? Who would step in to make sure that your bills and living expenses are paid? Who will manage your investments and income? Are you prepared if something should happen that causes you to be incapacitated? The Elder Care Firm of Christopher J. Berry, CELA can help you answer those questions to protect your best interests.
Will You Need a Conservator?
An injury or illness can occur at any time that can cause a person to be incapacitated. In the event of incapacitation, the judicial system has a process in place so that someone can legally manage a person’s finances and property while that person is unable to make decisions for himself or herself.
A conservator is a court-appointed agent charged with the responsibility of managing a person’s finances and property while that person is unable to do so. A family member or other interested party can file a petition with the probate court requesting that the court appoint a conservator.
The petition must include the reason why a conservator is needed. At the hearing, the petitioner must prove that the protected person is unable to make decisions for himself or herself because of an incapacitation. If the petitioner proves his case, the court will appoint a conservator to serve in a fiduciary capacity for the protected person to manage the person’s property and finances.
What are the Problems with Appointing a Conservator?
If you are forced to file a petition with the court to appoint a conservator for a minor child or a person who is unable to manage their finances because of an incapacitation, there are several downsides to a conservatorship that you should be aware of before beginning the process.
- The Decision is Not Up to You
The court makes the decision who will serve as the conservator. In many cases, the court approves the request of a family member to serve as conservator. However, there is no guarantee that you will be granted conservatorship if someone objects to your petition. Another person could be appointed the court to manage your loved one’s finances.
- The Incapacitated Person Has No Say in the Matter
The reason a petition is filed for conservatorship is that the protected person is unable to manage his or her own finances. Therefore, the court does not give the protected person a say in who manages his or her finances and makes decisions for him or her that could have a significant impact on daily life, health, and financial well-being.
- The loss of money or assets.
Until a conservator is appointed, you do not have the legal right to manage your loved one’s finances and property. During the time it takes to file a petition, schedule a court hearing, and receive your appointment, your loved one could dispose of assets or become the victim of fraud or elder financial abuse.
- Cost of a Conservatorship
The cost of a conservatorship can be substantial, especially if you must fight other family members or parties in court. Court costs and attorney fees can be high, depending on the circumstances involved in the proceeding.
- Continuing Court Involvement
If you are appointed as a conservator, you must file annual reports with the court. You might have other requirements placed upon you by the court as well. The continuing court involvement can be frustrating, time-consuming, and costly.
You can avoid the above issues by taking steps now to ensure that you appoint someone to serve as your agent if you need someone to manage your finances and property. Instead of waiting for the court to make this important and personal decision for you, you can choose who will act as your agent. Our Michigan estate planning attorneys can help you determine the best way to protect yourself and your assets in the event you are incapacitated or otherwise unable to make decisions for yourself regarding your finances and property.
Developing an Incapacity Plan
As part of a comprehensive estate plan, you need to have an incapacity plan in place in the event you cannot take care of yourself or your finances. Our Michigan estate planning lawyers can help you draft legal documents that give authority to the person you choose to control your assets due to incapacity.
Examples of documents you might consider executing as part of your incapacity plan include:
- Financial Powers of Attorney
- Living Will
- Health Care Power of Attorney/Health Care Directives
- Trust Agreements
Consulting an experienced probate attorney is one of the best steps you can take to protect what you have worked so hard to accumulate. You also protect your right to choose the person who will care for you and manage your business affairs if you become ill or incapacitated.
The Elder Care Firm of Christopher J. Berry, CELA — Working Hard to Protect Your Future
We encourage you to contact our office by calling 888-390-4360 or by using the contact form on our website to request additional information about estate planning, retirement planning, and conservatorships. Our Michigan estate planning attorneys are here to help you and your family develop a plan, apply for conservatorship, or assist a conservator in the discharge of his or her duties and responsibilities as a conservator.