Recently, I heard that a popular music singer named Britney Spears has a “conservator” over her affairs. A conservatorship is one of many legal tools that empower some people to officially and lawfully care, act and make decisions for others.
The most common way that people are empowered to help others is through an agreement called a “power of attorney.” A power of attorney includes a “principal” who grants authority to an “agent” to make certain decisions for the principal.
In Ohio, it is typical for people to have a financial/general power of attorney that grants to an agent the principal’s financial decision-making. It is also typical to have a healthcare power of attorney that grants to an agent the principal’s ability to make medical decisions.
Even with a power of attorney, the principal can still make his or her own decisions, and the agent is empowered to make decisions when the principal is unwilling or unable to do so. Powers of attorney are easily amended and terminated.
For people who are mentally unable to handle their affairs, guardianships empower others to act for those people. Guardianships are similar to powers of attorney, but they can only come about through an order of the local probate court initiated by someone other than the person over whom decision-making authority is sought.
For a guardian to be appointed over someone (called a “ward”), the probate court must determine as a matter of law that the ward is mentally unable to handle his or her own affairs. Similar to powers of attorney, there are guardianships that appoint guardians for wards’ healthcare and guardians for wards’ other aspects of life such as finances, lodging and assets. A guardianship generally terminates when a guardian resigns without a replacement, when the ward dies or when the ward becomes mentally able to handle his or her own affairs.
For people who are physically able to handle their affairs, conservatorships empower others (“conservators”) to act for them (“conservatees”). Conservatorships are also administered through the local probate court by petition filed by the conservatee. For this reason, a person who is mentally incompetent cannot request a conservator.
It is often easiest to think of a conservatorship as frequently being used when a mentally competent adult is placed in a position of great responsibility that typically takes special experience, education or time that the conservatee does not have the resources to personally provide (or even personally oversee) due to physical limitations.
Conservatorships typically end when the conservatee dies or loses mental capacity.
Both conservators and guardians are required to file regular, written reports with the applicable probate court identifying every transaction undertaken by that conservator or guardian as well as a full accounting of every penny that the guardian or conservator touches. For this reason, guardianships and conservatorships are more expensive than powers of attorney.
Well-written powers of attorney that include carefully considered agents and provisions can often (but not always) avoid the later need for guardianships and conservatorships over adults.
Lee R. Schroeder is an Ohio licensed attorney at Schroeder Law LLC in Putnam County. He limits his practice to business, real estate, estate planning and agriculture issues in northwest Ohio. He can be reached at Lee@LeeSchroeder.com or at 419-659-2058. This article is not intended to serve as legal advice, and specific advice should be sought from the licensed attorney of your choice based upon the specific facts and circumstances that you face.