Probate Conservatorships

Mistake #1:

Failing to post a bond as ordered by the court is a common mistake made in probate conservatorship cases. When a court establishes a conservatorship, it often requires the conservator to obtain a bond to protect the interests of the conservatee. The purpose of the bond is to provide financial security and ensure that the conservator acts in the best interest of the conservatee without mismanaging their assets.

Here are a few points to understand regarding bond requirements in probate conservatorships:

1. Bond Purpose: The bond acts as a form of insurance to protect the conservatee's assets and ensure the conservator fulfills their duties faithfully. If the conservator breaches their obligations, causes financial harm or misappropriates funds, the bond can help provide compensation for any resulting losses.

2. Court Order: The court typically sets the bond requirement in the conservatorship order. The amount of the bond is usually based on the value of the conservatee's assets and may be subject to periodic review. Failing to comply with the court's bond requirement can have serious consequences and may delay the appointment or continuation of the conservatorship.

3. Bond Premium: Obtaining a conservatorship bond involves paying a premium, which is typically a percentage of the bond amount. The premium cost may vary based on factors such as the conservator's creditworthiness, the size of the bond, and the specifics of the case. The premium is an ongoing cost, often paid annually, for as long as the bond remains in effect.

4. Bond Exceptions: In some cases, the court may waive the bond requirement if it determines that it isn't necessary or if there are valid reasons for doing so. This may occur when the conservatee has limited assets, if another protective mechanism is in place, or if the court is satisfied with the conservator's financial responsibility.

Missing or neglecting to post the bond as ordered by the court can result in legal consequences, including potential removal as conservator. It is crucial for conservators to understand their obligations and comply with the court's orders regarding the bond to ensure compliance with the law and protect the conservatee's interests.

It's important to note that laws and procedures regarding probate conservatorships, including bond requirements, can vary from jurisdiction to jurisdiction. You need to understand the specific requirements and obligations in your role as the conservator.

Mistake #2:

Failing to file and obtain the CERTIFIED Letters of Conservatorship after they have been ordered by the court is another common mistake made in probate conservatorship cases. The Letters of Conservatorship are important documents that provide the legal authority for the conservator to act on behalf of the conservatee and manage their affairs.

Here are some important points to understand about obtaining and filing Letters of Conservatorship:

1. Court Order: Once the court has approved the conservatorship and issues an order appointing the conservator, it is necessary to take further steps to obtain the Letters of Conservatorship. These letters serve as official documentation of the conservator's authority and responsibilities.

2. Application Process: The conservator typically needs to file an application with the probate court to request the Letters of Conservatorship. The application will require specific information about the conservator, the conservatee, and the nature of the conservatorship. The court may also require supporting documentation and may conduct a hearing before issuing the letters.

3. Legal Authority: The Letters of Conservatorship grant the conservator the legal authority to act on behalf of the conservatee in financial, personal, or both matters as specified by the court. Without the Letters of Conservatorship, the conservator may not have the necessary legal authority to make decisions on behalf of the conservatee or manage their assets.

4. Filing the Letters: Once the court approves the conservator's application and issues the Letters of Conservatorship, it is essential to file the letters with relevant third parties, such as banks, financial institutions, and government agencies. These entities often require proof of the conservator's authority before allowing access to the conservatee's accounts or information.

Failure to timely obtain and file the Letters of Conservatorship can hinder the conservator's ability to effectively carry out their duties and may cause delays or obstacles when interacting with financial institutions, healthcare providers, or other relevant entities. It is crucial for conservators to understand the process for obtaining and filing the letters and to do so promptly after they are ordered by the court.

Mistake #3:

The conservator may fail to petition the court for the necessary power and authority to sell real estate owned by the conservatee. Selling real estate is often a crucial step in managing the conservatee's assets, especially if the estate needs to be liquidated or if the real estate is no longer needed for the conservatee's welfare.

Here are key points to understand regarding the power and authority to sell real estate in probate conservatorship cases:

1. Petitioning the Court: In order to sell real estate, the conservator typically needs to petition the court for the power and authority to do so. This usually involves filing a petition with the court detailing the reasons for the sale and providing all necessary information about the property, such as its value, any encumbrances, and other relevant details.

2. Notice and Hearing: After filing the petition, the court will typically set a hearing date and require the conservator to provide notice of the proposed sale to interested parties, such as the conservatee's relatives and other potential beneficiaries. This notice will allow interested parties to object to the sale if they have valid concerns or objections.

3. Court Approval: At the hearing, the court will review the conservator's petition and any objections or concerns raised by interested parties. The court will then decide whether to grant the conservator the power and authority to sell the real estate based on the best interests of the conservatee. If approved, the conservator can proceed with the sale. Failing to seek the necessary power and authority to sell real estate can significantly limit the conservator's ability to properly manage the conservatee's assets and may lead to delays, disputes, or even legal consequences.

It is crucial for the conservator to understand the process and requirements for obtaining permission to sell real estate and to take the necessary steps to seek court approval when needed.

Mistake #4:

Missing a court date for an accounting of how the assets were spent is another common mistake in probate conservatorship cases. It is crucial for the conservator to comply with all court deadlines and requirements to ensure transparency and demonstrate that they are fulfilling their fiduciary duty to act in the best interests of the conservatee.

Here are some key points to understand regarding court dates and accounting in probate conservatorship cases:

1. Court Orders: The court may issue specific orders regarding accounting requirements and deadlines for the conservator. It is important for the conservator to review and understand these orders and comply with them accordingly.

2. Accounting Reports: Depending on the jurisdiction, the conservator may be required to file periodic accounting reports with the court. These reports detail the income received, expenses paid, assets sold or acquired, investments made, and any other financial activities related to the conservatee's estate. The reports should be prepared in accordance with the court's requirements and supported by proper documentation.

3. Notice Requirements: The conservator may be required to provide notice to interested parties, such as the conservatee's relatives or other potential beneficiaries, regarding the filing of accounting reports and court dates related to these reports. Proper notice should be provided to all required parties to ensure transparency and allow interested parties to raise any concerns or objections.

4. Compliance with Deadlines: It is crucial for the conservator to comply with all court-ordered deadlines, including those related to filing accounting reports and appearing in court. Missing a court date can have serious consequences, such as contempt of court or allegations of financial mismanagement. It is advisable for the conservator to stay organized, maintain a calendar, and set reminders to ensure all deadlines are met.

In the event that a court date is missed, it is important to consult with an attorney experienced in probate matters immediately. They can guide you on next steps and help determine the best course of action to rectify the mistake.

Mistake #5:

Providing the conservatee's allowance in a timely manner is an important responsibility of the conservator, as it ensures that the conservatee's basic needs and expenses are met.

Here are some key points to understand regarding the conservatee's allowance in probate conservatorship cases:

1. Court-Approved Allowance: The court may establish a specific allowance amount for the conservatee based on their needs and the available resources of the estate. This allowance is intended to cover the conservatee's personal expenses, such as housing, food, clothing, medical care, and other necessary costs.

2. Regular Payments: Once the court has approved an allowance amount, it is the conservator's responsibility to ensure that regular payments are made to the conservatee. These payments should be made consistently and in a timely manner, such as on a weekly or monthly basis. It is important to prioritize the conservatee's needs and provide for their well-being.

3. Record Keeping: The conservator should maintain accurate and detailed records of all allowance payments made to the conservatee. This includes keeping copies of receipts or other documentation that show how the funds were used for the conservatee's benefit. Maintaining meticulous records is important for accountability and may be required by the court.

4. Adjustments and Court Approval: If there is a need to adjust the conservatee's allowance due to changes in circumstances or the conservatee's needs, the conservator should seek court approval for any modifications. It is generally not advisable for the conservator to unilaterally make changes to the allowance without court approval, as this may be seen as a breach of fiduciary duty.

Remember, it is important to consult with an attorney experienced in probate matters for guidance on establishing and providing allowances in probate conservatorship cases. They can help you navigate the specific laws and requirements in your jurisdiction to ensure compliance with your duties as a conservator.

Mistake #6:

Failing to inform the court or interested parties when a conservatee has moved to a new residence is another mistake that conservators in probate conservatorship cases may make.

It is crucial for the conservator to promptly notify the appropriate parties about any changes in the conservatee's living arrangements for several reasons:

1. Legal Compliance: The court overseeing the conservatorship needs to be informed of any significant changes in the conservatee's life, including their residence. This is required to ensure legal compliance and to update the court's records accordingly.

2. Continued Oversight: By notifying the court of a change in residence, the conservator ensures that the appropriate jurisdiction continues to have oversight over the conservatee and their affairs. This allows the court to maintain its ability to protect and advocate for the conservatee's best interests.

3. Communication with Interested Parties: It is essential to keep all relevant parties informed of the conservatee's new address. This can include healthcare professionals, attorneys, family members, and any other individuals involved in the conservatee's care and well-being. Providing this information helps maintain open lines of communication and ensures that everyone is aware of the conservatee's current situation.

4. Accessibility and Accountability: Knowing the conservatee's new residence allows interested parties, including the conservator, to access the conservatee if needed. It also enables concerned parties to monitor the conservatee's living conditions and ensure their safety and well-being.When a conservatee moves to a new residence, the conservator should promptly notify the court, typically by filing the necessary forms or submitting a formal written notice.

It is crucial to follow the specific procedures outlined by the court and any applicable laws or regulations related to conservatorship in the jurisdiction. By proactively informing the court and relevant parties about changes in the conservatee's residence, the conservator maintains transparency, compliance, and accountability, all of which are crucial aspects of fulfilling their duties in a probate conservatorship.