How to Establish a Conservatorship
July 19th, 2022
If you are concerned that your loved one cannot manage their financial affairs — and a financial power of attorney was not executed — you might consider petitioning the court for a conservatorship. A conservator can assist someone who cannot make decisions about their money or property. However, it’s important to understand that there are certain legal criteria that must be met in order for an Oregon conservator to be appointed.
What is a Conservatorship?
A conservator is an individual appointed by the court to handle the finances of a person who is “financially incapable.” This means that the person has a condition that causes them to be unable to manage their own financial resources. In other words, t hey cannot obtain, administer, and dispose of their real property, personal assets, business property, benefits, and income.
Under Oregon law, a conservator may be appointed for a variety of reasons, including the following:
- Mental illness
- Mental retardation
- Physical illness or disability
- Chronic use of drugs or controlled substances
- Chronic intoxication
- Detention by a foreign power
Significantly, a medical diagnosis such as Alzheimer’s Disease, bipolar disorder, Down syndrome, or a brain injury doesn’t mean a person is “financially incapable.” A person who has made bad financial decisions is also not necessarily “financially incapable.” This is a legal standard that must be determined by a judge.
How is a Conservator Appointed?
Although a conservator is usually a family member of the financially incapable individual, they must still be appointed by a judge. In some cases, a court may determine that it is in the best interests of the individual to appoint a disinterested third party. To begin the legal process of appointing a conservator, a petition must be filed with the court specifying why the individual should be declared a protected person. The petition must also include facts demonstrating that the individual cannot manage their property and financial affairs and evidence that they possess property exceeding $10,000.
Once the petition is filed with the court, it must be personally served on the respondent and copies must be mailed to the next of kin and the applicable government agencies. The court will schedule a hearing if the respondent or any of the parties served with notice file an objection to the conservatorship. At the hearing, the judge will listen to witness testimony and assess the evidence presented to decide whether an Oregon conservatorship is necessary and the proposed conservator is suitable for the appointment. If there is significant evidence of an immediate risk of harm to the respondent’s assets or property, the judge may issue an appointment for a temporary conservator lasting up to 30 days.
Duties and Powers of an Oregon Conservator
Following the conservator’s appointment, they are required to file an inventory of the protected person’s property with the court and transfer the assets into the conservatorship name. The conservator must also obtain a bond that ensures they will perform their duties honestly and diligently. The amount of the bond is determined by the court, based on the protected person’s assets and income — these assets must also be used to pay for the protected person’s reasonable expenses.
An Oregon conservator must submit an annual accounting to the court that outlines the money received and disbursements throughout the year. Copies of the accounting must typically be served on the respondent and their family members. Critically, the conservator must obtain approval from the court prior to selling property, withdrawing from certain accounts, or being paid for the services they rendered to the protected person.
What is the Difference Between a Guardianship and a Conservatorship?
It’s important not to confuse guardianship and a conservatorship. A guardianship is an arrangement that authorizes someone to make healthcare and daily decisions for a person who has been declared legally incapacitated. A conservatorship is limited to assisting only with financial decision-making.
In some instances, both a guardianship and conservatorship may be necessary. Otherwise, if a person is incapacitated in some areas and not others, only one may be needed. However, in both cases, the guardian or conservator is a “fiduciary.” This means they have an obligation to act only in the protected person’s best interests, keep good records, and ensure the protected person’s property is separate from their own.
Contact an Experienced Conservatorship Attorney in Oregon
If you are concerned that an elderly or incapacitated loved one is unable to manage their finances properly, it’s best to speak with a knowledgeable attorney to discuss whether a conservatorship might be in their best interests. At Litowich Law, we provide experienced counsel for conservatorship matters and strive to secure the best possible solution 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.