Conservatorships

A conservator may be needed for an adult when that person is unable to manage property and financial affairs effectively. This could be as a result of the property being mismanaged and wasted, or if funds are needed for the support, care, and welfare of the legally incapacitated person. Typically, minor conservatorships are needed when a minor (any person under age 18) receives money from an inheritance, life insurance, wages, or an injury settlement over $5,000 in any one year. The assets are turned over to the minor on their 18th birthday.

A conservatorship is a process in which an individual (known as the conservator) takes over another person’s financial and business affairs. The conservator is usually a friend, relative, or close associate of the protected person. His or her job is to do things like pay bills, invest money, care for assets, and protect the person from financial harm, scams, or schemes.

A conservator owes a fiduciary duty of the highest trust to the protected person. The conservator must use care in handling property, be prudent in making investments, and use assets only for the protected person’s benefit. The conservator has a duty to account for any amount spent. The conservator must file an inventory of all assets owned by the protected person. Each year, the conservator is then required to file an accounting with the Probate Court setting forth the assets, income, and expenses made during the year.

The Court may require a surety bond to protect the assets. A conservator must apply and be approved for a bond. A surety bond is a guarantee of the conservator’s management of the assets. In the event that the conservator improperly uses or steals the assets, the bond may be surcharged to recoup the loss.

After the petition is accepted for filing, the court will appoint a guardian ad litem to represent the individual in the court proceeding unless the individual has his or her own lawyer, or a mentally competent adult voluntarily requests the appointment.

It is important for you to cooperate with the guardian ad litem. The guardian ad litem does not have the authority to make decisions for the individual. The individual may have to pay for the guardian ad litem.

If necessary, the court may also order the individual to be examined by a physician or a mental health professional. The court may also send someone (called a visitor) to interview the individual. The visitor may be the guardian ad litem, a court officer, or court employee.

If the court believes an individual’s estate requires immediate protection before appointing a conservator, the court may issue a preliminary protective order. This order may involve the appointment of a special conservator. The order will authorize specific acts that provide for immediate protection of the individual’s assets.

A Power of Attorney is a private document that is executed by a person (the principal) granting powers to an attorney in fact (agent). There is generally no court oversight of a Power of Attorney. A Conservatorship is done through a public proceeding with court oversight. There are advantages and disadvantage for both. We are happy to discuss the best arrangement for your circumstances.

If an individual is unable to handle his or her monthly Social Security or Supplementary Security Income check, another person can apply to become his or her representative payee. Becoming a representative payee is not done through the court but rather through the Social Security Administration.

Yes. There are separate court petitions for guardianship and conservatorship, though the petitions may be considered by the court at the same hearing.

The fee is $175.00. The fee is paid to the probate court by the person filing the petition.

The Letters of Conservatorship are issued after the Conservator qualifies by the requirements set forth by the Court’s Order. The letters provide proof of the appointment and set forth any restrictions or limitations of the Conservator’s powers. Read the Letters of Conservatorship carefully and pay close attention to any restrictions imposed by the court.

You will note that most Letters of Conservatorship reflect two restrictions with regard to your authority: (1) “Real Estate not to be sold, purchased, mortgaged, pledged, or otherwise disposed of, or cause of lien to be placed on the property without prior Probate Court authority,” and (2) Assets are not to be removed from state of Michigan without prior Probate Court Authority.” These restrictions should be self-explanatory, but if you have a question about your limitations, please contact us prior to taking action. 

If the estate holds real estate, any transactions related to the property must have probate court approval, which means that we must first petition for authority to sell or mortgage any property. Additionally, no movement of money or assets out of the State can be done by you as Conservator, as the Court wants to maintain control of the assets and make sure that they are handled appropriately.

A Conservator has title to the property, but does not own it. Rather, a Conservator manages it for the benefit of the individual.

Although there is no requirement to hire a lawyer, it is strongly recommended. The legal fees associated with the hiring of a lawyer are an expense of the conservatorship estate.

The conservatorship will remain open as long as the need for the conservator exists. However, the conservatorship will terminate at death.

A conservator must file an account annually, although the court can request an account at any time. An account shows money and property received during the year as conservator, as well as expenses and other disbursements. An account also shows the value of the estate at the beginning of the period, and has a list of assets remaining at the end of the account period together with the value of each asset.

As Conservator, it is imperative that you keep accurate records of all of your actions. All deposits and/or withdrawals for the fiduciary bank account should be logged and all receipts should be retained. There should be no commingling of assets. You should maintain a detailed log of all activity performed as Conservator including the dates, times, and descriptions of your activities.

As Conservator, your primary responsibility is to segregate and distribute the estate’s assets. However, you also have a duty of undivided loyalty, impartiality, care, and prudence to the person who entrusted you with this responsibility. The conservator must use care in handling property, be prudent in making investments, and use assets only for the benefit of the individual and his or her dependents. Encourage independence and self-reliance of the individual to the best extent possible. You must account for all money and property received, all money spent, and each property sold.

It is recommended that conservators:

  • Do not withdraw cash;
  • Do not commingle conservatorship assets with your own;
  • Do not treat the individual’s property as your own in any way;
  • Do not put any of the individual’s money in your own bank account;
  • Establish a bank account or accounts separate from your own. Do not set up a joint bank account;
  • Unless you first obtain court permission, do not self-deal;
  • Do not sell anything to the individual or purchase anything from him or her;
  • Do not take a loan from conservatorship funds;
  • Do not use conservatorship funds to pay for your own personal bills and needs;
  • Except for you receiving court approved fees for your services, neither you nor any of your family should financially benefit from the conservatorship.

All of the assets should be re-titled as set forth on the Letters of Conservatorship, and the funds deposited in a properly established fiduciary bank account. Our office can assist in opening up the fiduciary bank account.

Some individuals may need a conservator for a relatively short time, such as when recovering from an illness or injury. Other individuals may need a conservator for the rest of her or his lifetime. If the individual for whom you conservator regains the ability to handle his or her finances, please advise our office to petition the court for termination of the conservatorship.

Go Ahead, Ask Away…

We’re here to help answer your questions. Probate matters can be complicated, let us be your guide. We have experts on hand to answer all of your probate related concerns. We take great pride in using our skills and knowledge to help walk you through all of your concerns. We take great pride in using our expertise for you and look forward to hearing from you.

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