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Conservatorships


What is a Conservator? 


A conservator is a person appointed by a court to make financial decisions for a person who the court has determined is financially incapable (the protected person). The conservator can be given full authority to make all financial decisions for the protected person. Alternatively, the conservator’s authority can be limited to specific areas where the protected person cannot make decisions, either allowing the protected person to make some decisions for himself or herself or preventing access to certain funds or assets altogether.

The exact authority of the conservator is determined by the court’s judgment appointing the conservator. The protected person does not have the legal authority to make whatever decisions the conservator is given authority over, but the conservator must always consider the protected person’s wishes in making decisions.

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Who needs a Conservator?

Under Oregon law, a person is financially incapable, and thus needs a conservator, when that person is unable to take actions necessary to deal with property, benefits, or income effectively for reasons including, but not limited to, mental or physical illness or disability, chronic use of drugs or alcohol, confinement, detention by a foreign power, or disappearance. ORS 125.005(3).

A diagnosed disability or other impairment does not automatically make a person financially incapable. The individual must lack or have lost the ability to effectively take action to manage financial resources. If an individual has the ability to effectively take action to manage financial resources, they are not financially incapable, regardless of making bad choices. In situations where a person is financially incapable, but has less than $10,000 in assets, a court may be willing to grant financial powers to a guardian rather than requiring a conservator.

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How much does conservatorship cost?

Most families and caregivers are already in stressful emotional and financial situations when they reach the point of considering a conservatorship. To help ease that burden, we make prices as low and predictable as we can. The following are our rates for conservatorships:
  • $1,000 plus actual costs (e.g. filing fees, court visitor fees, and bond premium) for an uncontested, non-emergency conservatorship;
  • $1,600 plus actual costs (e.g. filing fees, court visitor fees, and bond premium) for an uncontested, temporary/emergency and permanent conservatorship;
  • Additional fees and costs at an hourly rate for any contested conservatorship. Final cost in a contested conservatorship will depend on the amount of time required to respond to the objection(s).
In the vast majority of cases where a conservatorship is needed, a guardianship is also necessary. To help limit costs for families, we offer both services in one package. The following are our rates for guardianships and conservatorships together:
  • $1,600 plus actual costs (e.g. filing fees, court visitor fees, and bond premium) for an uncontested, non-emergency guardianship and conservatorship;
  • $2,200 plus actual costs (e.g. filing fees, court visitor fees, and bond premium) for an uncontested, temporary/emergency and permanent guardianship and conservatorship;
  • Additional fees and costs at an hourly rate for any contested guardianship and conservatorship. Final cost in a contested guardianship and conservatorship will depend on the amount of time required to respond to the objection(s).

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What is the process for appointing a conservator?

The process starts with a family member or other individual who cares about the individual’s welfare, called the petitioner, filing a petition with the court for appointment of a conservator. This petition notes the facts that show the individual, called the respondent, needs a conservator and the proposed conservator is appropriate and willing to be conservator. The petitioner must give notice to certain family members and other interested individuals that the court is being asked to appoint a conservator.

This notice must be given at least 15 days before a conservator is appointed, unless there is an emergency requiring faster action. Any interested individual is able to object to the conservatorship by informing the court of their objection and paying a filing fee.
After the petition is filed, the court appoints a neutral individual called a court visitor to talk to people involved in the individual’s life and otherwise investigate the facts alleged in the petition. Once the court visitor has finished investigating, he or she will draft a report making recommendations about whether the respondent needs a conservator and whether the proposed conservator is appropriate.

A judge will then consider the petition, the court visitor’s report, and any objections that were raised and determine whether to appoint a conservator and, if so, whom to appoint. Typically the judge will appoint the proposed conservator and issue official documents called Letters of Conservatorship to the conservator so he or she has proof of his or her authority as conservator for banks, care facilities, and other similar entities.

After the conservator is appointed, he or she must file a detailed inventory of all of the protected person’s property, including estimates of the true cash values of all items. This inventory must be provided within 90 days unless the court grants additional time. If the protected person is 14 years old or older, a copy of the inventory must be served to him or her in person or by mail.

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What happens if someone objects?

If an objection is filed with the court by the respondent or another interested individual, a hearing will be scheduled to address the petition and objection. At this point, a conservatorship proceeding changes from being considered “uncontested” to being considered “contested.” The respondent, the petitioner, and the objector (if not the respondent) will all be able to present evidence and question witnesses to prove whether the respondent needs a conservator and whether the proposed conservator is appropriate. After hearing from all sides, the judge will determine whether to appoint a conservator and, if so, whom to appoint.

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What if there is an emergency?

Sometimes, a person is financially incapable and immediate action needs to be taken to address a serious danger to the person’s estate. Most often, these situations involve a need for medical care or placement in a care facility because of an unexpected crisis. In these situations, the court can appoint a temporary conservator as soon as the day a petition is filed, with notice requirements adjusted to protect the individual.

A petitioner asking for a temporary conservator must provide clear and convincing evidence to the court that the respondent is financially incapable, there is an immediate and serious danger to the estate of the respondent, and the welfare of the respondent requires immediate action. The temporary conservator must be appointed for a specific purpose and can only be given powers for 30 days at a time.

However, a temporary conservatorship can be extended by the court and a temporary conservator is often later appointed as a permanent conservator. If you believe your situation meets these criteria, please call us immediately. Temporary/emergency petitions can typically be filed within 1 business day after the client provides all necessary information.

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What are a conservator’s duties and limitations?

A conservator must file an annual accounting with the court providing detailed information about the protected person’s finances throughout the previous year. A conservator must furnish and maintain a bond worth the value of the protected person’s estate plus one year of income that is conditioned on his or her faithful and lawful execution of his or her duties as conservator, unless the court orders otherwise.

The conservator must take possession of all property, funds, and income of the protected person, except the protected person may retain possession and control of funds for living requirements based on his or her needs and capacities. Legal title to all of the protected person’s property remains with the protected person.

The conservator has the power to spend the protected person’s funds for support, education care, or benefit of the protected person, any dependents of the protected person, and anyone who received support from the protected person prior to the conservatorship proceedings. This power must be exercised with consideration of the recommendations of any parent or guardian of the protected person, the size of the estate, the probable duration of the conservatorship, the likelihood the protected person will stop needing a conservator, the standard of living the protected person is accustomed to, and other funds and sources of support. The conservator also must always act in the best interests of the protected person.

A conservator may make gifts on behalf of the protected person for such purposes as the protected person might have been expected to make of up to $250 to per individual in a year for a total of no more than $1,000 in a year without court approval if the protected person has sufficient funds. A conservator must also obtain court approval to sell the protected person’s principal residence, sell or give up future interests in property, create a trust, elect options or change beneficiaries on insurance or annuity policies, surrender insurance or annuity policies for cash value, disclaim an interest in property offered to the protected person, make a contract for an annuity or life care, or revoke a transfer on death deed. A conservator does not need court approval, if acting reasonably to accomplish the goal of the conservatorship, to collect, hold and retain assets, receive additions to the estate, continue a business, invest and reinvest funds, deposit funds in a bank, acquire or sell estate assets, modify or repair real property, enter into leases, and numerous other actions necessary for the protection of the estate assets.

All of a conservator’s powers must be exercised with due consideration for any estate plan the protected person created before becoming financially incapable. Further, if the protected person is financially incapable but not incapacitated, the protected person retains the power to make wills and otherwise create or change an estate plan.

Additional powers, duties, and liabilities of a conservator can be discussed with an attorney based on the specific situation arising.

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Who can serve as conservator?

Typically, a parent, child, or other close relative who has a financial background serves as conservator. Generally, it is best for the conservator to live near the protected person, or at least within the state to enable him or her to properly care for the protected person’s estate.

If no family or friends want to be conservator or there is a fight about who should be conservator, a professional conservator can be appointed instead. Professional conservators have specific training in financial management and/or law that enables them to care for multiple protected persons. Professional conservators can be a great option for protected persons who have the funds to pay for their services.

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