Fighting Conservatorship Abuse

October 18th, 2022
Posted By
Sarah M. Litowich
Daughter sitting with her elderly mother - stopping conservatorship abuse concept
Conservatorships are essential to ensure those who are incapable of taking care of their own financial affairs have someone trustworthy to make business, legal, and monetary decisions for them. Unfortunately, those who are appointed as conservators don’t always act in the best interests of the protected person and sometimes take advantage of their power. When conservatorships are abused, it can cause serious financial harm to the person in need of protection.

What is a Conservatorship?

Not to be confused with a guardianship, a conservatorship is a legal arrangement in which a person is given the legal authority to make financial decisions on behalf of someone who has been determined “financially incapable.” A conservator can be appointed for a variety of reasons, including physical or mental illness, confinement, chronic use of drugs or alcohol, and disability. Importantly, “financially incapable” is a legal standard applied by the court — a medical diagnosis such as Alzheimer’s Disease, bipolar disorder, Down syndrome, or a brain injury is not sufficient on its own to warrant the appointment of a conservator. A conservatorship comes with certain powers and duties, which are outlined in the court order. They may have the authority to manage the protected person’s estate, pay bills, collect debts, file lawsuits, and handle real estate matters. While they are a powerful tool, conservatorships can also have the potential for abuse when these powers are given to an unscrupulous or deceitful conservator.

What is Conservatorship Abuse?

Conservatorship abuse can occur in many different ways. Critically, since a conservator is in the best position to access the property of the protected person, some of them may choose to steal funds or act in an unethical manner when handling the assets for which they are responsible. In addition to financial abuse, there may also be a verbal, physical, or emotional element to the exploitation. Some common warning signs of financial exploitation can include the following:
  • Unpaid bills
  • Bounced checks
  • Changes in banking practices
  • Suspicious changes in wills or estate plans
  • Changes in gifting behavior
  • Forged financial documents
  • Sudden limitations on visits from family and friends
Not all forms of conservator abuse are easily detected. However, it is important to note that a conservator is obligated to provide an accounting to the court of the protected person’s financial resources within 60 days of the incapacitation. They must also file an accounting of the money received and disbursements made within 60 days after each anniversary of their appointment and within 30 days after their removal, resignation, or the termination of the conservatorship.

Removing a Conservator

If you suspect that your loved one is being subjected to conservatorship abuse, it may be necessary to file a petition with the court requesting that the conservator be removed. Significantly, a conservator has a fiduciary duty to the protected person. Under Oregon law, the court must remove a conservator in the event they have breached this duty and it is in the best interests of the protected person. In addition to instances of theft, embezzlement, and financial abuse, a judge may remove a conservator in the event the conservator fails to use good business judgment or diligently manage the estate of the financially incapable person. A conservator may also be removed if they fail to perform their duties or limit the protected person’s communication, visitation, or social interaction with family and friends — except as specifically allowed by the court or to the extent necessary to safeguard the person’s health, safety, or welfare.

What Can Be Done to Prevent Conservatorship Abuse?

Conservatorships should only be used if less restrictive means are not available. Nevertheless, the best way to prevent conservatorship abuse is by using estate planning as a preventative measure. By using the right estate planning tools, you can voluntarily designate an individual whom you trust to look after your finances and take care of your business affairs in the event you become incapacitated. For instance, a financial power of attorney can empower a specific individual to oversee your finances. Joint bank accounts and money management programs might also be an option to ensure your finances are handled in the manner you wish should you become financially incapable. In addition, by creating a living trust, you can place assets such as bank accounts, real estate, and other property under the control of a designated trustee. Many people appoint themselves as trustee and name a successor trustee who will take over in the event of incapacitation. If the court sees that you have legal documents in place, they will be unlikely to revoke them and appoint a conservator.

Contact an Experienced Oregon Conservatorship Attorney

If you have reason to believe conservatorship abuse is occurring, it’s best to consult with a knowledgeable attorney to discuss your legal options. At Litowich Law, we provide experienced representation for conservatorship matters and strive to obtain the best possible results in your case. Located in Salem and serving clients throughout Oregon, we welcome you to contact us for a consultation to learn how we can assist you.
Categories: Guardianship