top of page

Tutela testamentaria

Myth #1:  Probate Conservatorships are used to take away freedom and self-determination

There are several misconceptions surrounding probate conservatorships that need

to be addressed. Firstly, it is important to understand that a conservatorship is not

always an oppressive or restrictive measure. While it is true that conservatorships

can involve limitations on certain rights and decision-making abilities, they primarily

serve to protect and assist individuals who are unable to manage their affairs due to

physical or mental incapacities.

Another common misconception is that conservatorships are automatically permanent.

In reality, conservatorships can be temporary and are regularly reviewed by the court.

If circumstances change and the conservatee regains the ability to manage their affairs,

the conservatorship can be modified or terminated.

Additionally, there is a misunderstanding that conservatees lose all control over their

lives. In truth, conservatees are encouraged to participate in decision-making processes

to the extent of their abilities. Conservators are legally bound to act in the best interests

of the conservatee and involve them in decision-making as much as possible.

Another misconception is that conservatorships are primarily used for elderly individuals.

While aging individuals may be more susceptible to incapacity, conservatorships can

be established for people of any age who are deemed unable to handle their own

affairs due to physical or mental impairments.

It is also important to debunk the assumption that conservatorships are solely motivated

by financial gain. While there have been cases of abuse, the majority of conservatorships

are implemented with the genuine intention of protecting vulnerable individuals and

their assets from exploitation or mismanagement. Courts thoroughly examine the

qualifications and motivations of potential conservators to ensure the best interests of

the conservatee are safeguarded.

In conclusion, it is crucial to dispel misconceptions surrounding probate conservatorships.

By understanding their purpose, limitations, and the safeguards in place, we can have

more informed discussions and work towards ensuring the fair and appropriate use of conservatorships to support and safeguard individuals who are unable to manage their

own affairs.


Myth #2: It is prohibitive to apply for the protection of a Probate Conservatorship because it costs so much money. The Judges and Attorneys get all that money

Probate conservatorships can be associated with significant court fees, and it is

important to understand the factors contributing to these costs. Firstly, it is crucial

to recognize that probate conservatorships involve a comprehensive legal process

that requires thorough evaluation and oversight to ensure the best interests of the


One of the main reasons for the high court fees is the complexity of the legal procedures

involved in establishing and maintaining a conservatorship. Courts need to carefully

review and assess the situation, including medical evaluations, financial assessments,

and legal documentation. These processes require the expertise of multiple professionals,

such as attorneys, medical experts, and accountants, which adds to the overall costs.

Additionally, court fees cover the necessary administrative tasks involved in the

management of a conservatorship. This includes filing paperwork, scheduling hearings,

conducting periodic reviews, and maintaining accurate records. These administrative

functions are crucial for ensuring transparency, accountability, and the protection of

the conservatee's best interests.

Furthermore, court fees may also reflect the resources required to handle any potential

disputes or challenges that may arise during the conservatorship proceedings. These

may include legal representation for the conservatee or other interested parties,

mediation services, and the time and resources expended by the court to address

any contentious issues.

It is important to note that court fees can vary depending on the jurisdiction and the

complexity of the conservatorship case. However, it is essential to view these costs in

the context of the protection and advocacy provided by the court system. While high

court fees can be burdensome for families, they are intended to ensure a comprehensive

and fair process that safeguards the interests of the conservatee.

Efforts should be made towards exploring alternatives or streamlining the conservatorship

process to reduce the financial burden on individuals and families. However, it remains

crucial to strike a balance between cost-effectiveness and maintaining the necessary

safeguards to protect the rights and welfare of conservatees.

Myth #3: People are railroaded into probate conservatorships for no reason

The determination of whether an individual needs the protection of a probate

conservatorship is a complex and sensitive matter that requires careful evaluation and

consideration. It is important to recognize that the primary objective of a conservatorship

is to safeguard the rights, their best interest and the well-being of individuals who are

unable to make decisions or protect their own interests due to physical or mental

limitations. The decision to initiate a conservatorship generally arises when there is

sufficient evidence to demonstrate that an individual lacks the mental capacity or

physical ability to manage their personal or financial affairs. This incapacity may

result from conditions such as dementia, developmental disabilities, brain injuries,

other cognitive impairments or physical disabilities. 

The determination process typically involves various assessments by medical professionals, including doctors, psychologists, and psychiatrists, who analyze the individual's cognitive abilities, mental health, and functional limitations. Additionally, evidence is gathered from family members, friends, caregivers, and other sources who can provide insights into the person's daily functioning and decision-making capabilities.

It is essential to ensure that the decision-making process is fair, objective, and conducted

with the utmost respect for the individual's autonomy and dignity. This often includes

giving the individual an opportunity to be heard and considering their wishes and

preferences to the greatest extent possible.  Ultimately, the decision to establish a

probate conservatorship should prioritize the individual's best interests, aiming to protect

them from potential exploitation, financial abuse, or harm due to their incapacity. It

should be transparent, guided by legal principles, and involve input from all relevant

parties, including family members and interested individuals, subject to the court's


However, it is crucial to balance the necessity of conservatorships with the

promotion of autonomy, self-determination and the exploration of less restrictive

alternatives whenever feasible. Conservatorship should only be pursued when there

are no other reasonable alternatives available that adequately address the individual's

needs and ensure their well-being and protection.

Overall, the determination to pursue a probate conservatorship should be approached

with compassion, respect, and a commitment to upholding the individual's rights and

autonomy to the fullest extent possible.

Myth #4: The judges and attorneys put people on Probate conservatorships because they are old

 There is a prevalent myth surrounding probate conservatorships that suggests they

are primarily established because individuals are old. However, it is important to

dispel this misconception and understand that the establishment of probate

conservatorships is not solely based on age. In this article, we will explore the factors

considered when determining the need for a conservatorship and debunk the notion

that they are primarily set up due to old age.

Probate Conservatorships: Factors Considered, Regardless of Age:

1. Capacity Assessment:The primary factor in establishing a probate conservatorship

is an individual's capacity to manage their personal, financial, and healthcare affairs.

Age alone does not determine a person's capacity. Whether the individual is young or

old, the key consideration is whether they have the ability to make informed decisions

and adequately care for themselves.

2. Specific Incapacities:Probate conservatorships are not solely focused on age-related

incapacities such as dementia or Alzheimer's disease. They can also be established for

individuals of any age who have other specific incapacities, such as mental illness,

developmental disabilities, physical disabilities, or traumatic brain injuries. The focus

is on the person's overall ability to manage their affairs, rather than their age.

3. Petition and Court Assessment:The establishment of a probate conservatorship

requires a petition to be filed with the court. The court then reviews the evidence

presented to determine whether a conservatorship is necessary. This process involves

assessing the conservatee's specific circumstances, regardless of their age, and

determining if there are no less restrictive alternatives available to meet their needs.

4. Best Interest of the Conservatee:The court's primary concern in establishing a probate conservatorship is the best interest of the conservatee. This consideration involves

weighing the individual's ability to make decisions and protect their well-being, rather

than focusing solely on their age. The court may appoint a conservator if it is determined

that the conservatee cannot adequately care for themselves, regardless of their age.

The notion that probate conservatorships are primarily established due to old age is a

myth that fails to recognize the comprehensive factors considered in determining the

need for a conservatorship. Age alone does not determine an individual's capacity or

their ability to manage their affairs. The establishment of a conservatorship is based on

a thorough assessment of an individual's circumstances and their ability to make

informed decisions and protect their well-being.

It is crucial to debunk this myth and understand that probate conservatorships can be established for individuals of any age who have specific incapacities that prevent them from managing their affairs effectively.

Myth #5:  There is nobody who gets involved with people on Probate Conservatorships

People who are involved in probate conservatorships can include family members,

loved ones, professionals such as attorneys or medical professionals, and the court

system. Each plays a crucial role in ensuring the well-being and best interests of the


Family members and loved ones often serve as advocates for the conservatee, sharing

their knowledge of the individual's preferences, needs, and wishes. They can provide

valuable information to the court, helping to shape the decisions and arrangements

made within the conservatorship.

Attorneys specializing in probate law play a vital role in guiding families and advocating

for their clients' rights. They help navigate complex legal processes, ensure that the

conservatee's rights are protected, and provide expertise and guidance throughout

the conservatorship proceedings.

Medical professionals, including doctors or psychologists, contribute their expertise by

assessing the conservatee's mental and physical condition. Their evaluations help the

court determine whether a conservatorship is appropriate, what level of assistance is

needed, and whether alternatives to conservatorship should be explored.

Finally, the court system oversees the conservatorship process, making decisions based

on evidence and the best interest of the conservatee. Judges carefully consider all

relevant information, inputs from interested parties, and the conservatee's rights and

preferences. They exercise discretionary powers to ensure that the conservatorship

serves its intended purpose while respecting the conservatee's autonomy.

Involvement from all parties ensures a comprehensive and holistic approach to

probate conservatorship. It promotes transparency, fairness, and the protection of

the conservatee's rights. Collaboration among family members, professionals, and

the court system is essential to provide the necessary support and safeguards for

individuals in need.




bottom of page