Most individuals are familiar with the establishment of guardianship for either an adult individual who has been declared to be incompetent or for a minor individual under the age of 18. However, if an individual is not incompetent but has some physical limitations which prevent him or her from handling his or her financial affairs, another option exists other than establishing a power of attorney for financial affairs. That option is called a conservatorship. The Ohio Revised Code provides that a competent adult may petition the probate court in the county in which he or she resides to place, any or all of his real or personal property under a conservatorship with the court for a definite or indefinite period of time.
Unlike a durable power of attorney for financial affairs in which an individual appoints another individual to be able to transact financial affairs for him without any court supervision, in a conservatorship, a competent individual asks the court to appoint and supervise someone to handle these financial matters. That person is called a conservator. The conservator may be given specific powers or general authority to transact financial affairs for the competent adult. When establishing this conservatorship, the competent adult must specifically describe all of their real and personal property that will be placed under this conservatorship and describe all of the powers granted to the individual handling their affairs and/or any limitations upon those powers. That competent adult is also permitted to name the individual who they would like to be appointed as their conservator, as opposed to having the court select someone for them.
After the petition is filed for the appointment of a conservator, the probate court will schedule a hearing. If the court determines that the competent adult voluntarily filed the petition and that the proposed conservator is a suitable individual, the court will execute an order of conservatorship. After issuing this order of conservatorship, all of the powers which a guardian of the person, estate, or both would have will also apply to the conservator unless those powers and authority have been specifically limited by the competent adult.
After appointed as a conservator, the individual is responsible for obtaining a bond if necessary, filing an inventory of all of the real and personal property of the competent adult, and satisfying various fiduciary accounting requirements annually. A conservatorship can terminate either upon a court determination of incompetency, the death of the competent adult, an order of the probate court, or the execution of a written termination notice by the competent adult.
The establishment of a conservatorship is somewhat rare; however, this probate procedure is becoming more relevant today due to the desires of competent adults who may need assistance with regard to their various financial affairs. Instead of establishing a power of attorney which provides for unrestricted access and power to an individual, these competent adults can now resort to the establishment of a conservatorship that will allow someone to assist them with these financial affairs with court supervision.
If you would like to know further information about the establishment of a conservatorship, please contact your estate planning attorney.
NOTE: This general summary of the law should not be used to solve individual problems since slight changes in the fact situation may require a material variance in the applicable legal advice.
James F. Contini II, Esq.
Certified Specialist in Estate Planning,
Trust & Probate Law by the OSBA
Krugliak, Wilkins, Griffiths & Dougherty Co., LPA
158 North Broadway
New Philadelphia, Ohio 44663