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Conservatorship

Conservatorship - Departments & Programs, UW Medical Foundation, Patient Resources, Social Work Services Quick Guide, Social Work Manual, Legal

Focus

Managing Your Finances through Conservatorship

Wisconsin Guardianship Support Center

CWAG Elder Law Center
2850 Dairy Drive, Suite 100
Madison, Wisconsin 53718-6751
(800) 488-2596

Attorney Michele Hughes

What is Conservatorship?

If you feel that managing your finances has become increasingly difficult or burdensome because of disability or other reason, you may want to consider asking a court to appoint a conservator on your behalf to manage your finances. Conservatorship is a court-supervised system in which you voluntarily agree to allow another individual of your choosing to manage your estate. In a court proceeding, a judge will determine whether the individual you have chosen to be your conservator is suitable, and if so, appoint the individual to manage your finances. A conservator must file an initial inventory of all of your assets with the court. He or she must also file an annual accounting where he or she reports your income and expenditures to the court. The court may require the conservator to post a bond to protect you against theft or mismanagement.

What are Some of the Reasons People Seek a Conservatorship?

One of the most important advantages of conservatorship is that, unlike guardianship, the judge will not find you incompetent. There is no need for you to be evaluated by a physician or psychologist. In a conservatorship, you do not lose fundamental rights such as the right to vote, marry, contract, or obtain a driver's license or other state license, which you might lose if a court appointed a guardian of the person and estate over you, and did not limit the guardianship. In a conservatorship, the court will only inquire into two matters: 1) do you desire a conservator; and, 2) is the conservator you have chosen suitable. If the court is satisfied that the answer to both questions is yes, it will appoint your chosen conservator to manage your finances. Other advantages to conservatorship include:

What are the Disadvantages of Seeking a Conservator to Manage your Assets?

There are court and attorneys fees needed to establish a conservatorship. Your conservator also may receive court approval to charge you for his or her services for managing your finances. There are less expensive ways to obtain assistance in managing your estate. These options include:

When Is Conservatorship Right for Me?

Even though less expensive and more flexible planning options than conservatorship are available, conservatorship may nonetheless be right for you. You may have no close family, and might hesitate to choose a person such as a neighbor or distant relative to manage your funds without court supervision. Many agents under power of attorney for finance documents steal the principal's money, despite the principal's careful planning and considered choice of agent. Some individuals may even have concerns about appointing a family member as agent under a power of attorney for finances document and would prefer to have the family member accountable through the court system, and possibly be required to file a bond as insurance against theft.

Another reason a person may seek conservatorship is when there has been a history of distrust and disagreement amongst family members, especially about financial matters. In a common scenario, siblings in a family disagree about the way a parent is choosing to spend his or her money. If the relationships are seriously strained, one adult child may file for guardianship despite the parent having chosen another adult child as agent under a power of attorney for finances document, thereby possibly nullifying the parent's choice of financial decision-maker. In this situation, the individual may avoid having a guardianship imposed by choosing a court appointed conservator.

Conservatorship is likely not a good option for you if wish to continue making many of your financial decisions. Under the conservatorship law, it is uncertain to what extent you retain authority to make financial decisions. Additionally, court decisions have not completely resolved the issue of how much authority you retain to manage your finances. In one decision, the Wisconsin Supreme Court held that a conservatee is not considered completely incapable of looking after his or her own property and can gift his or her property where both the conservator and the court do not object. However, in another decision, a Court of Appeals held that a conservatee's transfer of a home to another family member was void even though the conservatee was competent at the time of the transfer, because the conservatee did not have authority to dispose of his or her property without the conservator or court's approval. Thus, if you wish to continue to make some of your own financial decisions without obtaining the conservator's approval, a conservatorship is not the best option for you.

What Are the Procedures for Filing for Conservatorship?

To begin the process of conservatorship, you must file a petition. A filing fee is required to be filed at the time the conservator files the inventory. This fee is $20.00 if your current estate's value is less than $10,000, or 0.2% of your gross estate if your estate is larger than $10,000.

After filing the petition, the court will set a time and place for the hearing and determine who should receive notice of the hearing. At the hearing, the court will personally ask you questions. If he or she is satisfied after questioning you that you desire a conservator and that the person you have nominated is suitable, the court will issue letters of conservatorship to the nominated person.

Most individuals seeking conservatorship retain an attorney to assist them with these procedures.

What Are the Responsibilities of a Conservator?

The powers and duties of a conservator are the same as the powers and duties of a guardian of the estate. These general duties are set forth in Chapter 880 of the Wisconsin Statutes.

Some of a conservator's duties include:

A conservator may not:

Can a Conservator Make Health Care Decisions?

No. In Wisconsin only an agent under a power of attorney for health care or a guardian of a person can make health care decisions on behalf of an incompetent or incapacitated person. Thus, it is important that in addition to financial planning through conservatorship, a power of attorney for finances document, a living trust, or other means, you complete a power of attorney for health care document. In this way, you can avoid the need for a guardian of the person to be appointed. Free forms are available by calling the number listed below.

When is a Conservatorship Terminated?

You may apply to the court at any time to terminate your conservatorship. The court will set a hearing date, and require that 10 days notice by mail be given to your guardian, if any, your conservator and your presumptive heirs. The court must remove your conservator and order your property restored to you unless it is clearly shown that you are incompetent. If the court determines, after hearing that you are incompetent, the court may: 1) order the conservatorship continued; 2) appoint a successor conservator of your choosing, if the court finds that the successor conservator is suitable; or 3) direct that guardianship proceedings be commenced. If you desire, you may also nominate a successor conservator, which the court may appoint if suitable. The conservator must provide a final accounting to the court before being dismissed. If the conservatorship continues, a conservator's authority ceases upon your death.