Safeguarding Interests: The Role of the Conservator in Massachusetts
When a person is unable to manage their financial, property, and business affairs due to illness, or disability, the court may appoint a conservator to act on their behalf. A conservator plays a vital role in protecting the interests and well-being of the individual they are appointed to represent. In Massachusetts, the conservatorship process is governed by specific laws and regulations to ensure the conservator carries out their duties responsibly and ethically. In this blog, we will explore the role of the conservator in Massachusetts, their duties, and responsibilities.
Understanding Conservatorship in Massachusetts
Conservatorship is a legal arrangement in which a court appoints a responsible person (the conservator) or entity to manage the financial, property, and business affairs of another individual (the protected person). This legal relationship is established to assist individuals who are unable to make informed decisions for themselves due to incapacity, disability, mental illness, or other reasons.
Massachusetts law provides that a conservator may be appointed for a person who is disabled if the Court determines that:
- the person is unable to manage property and business affairs effectively because of a clinically diagnosed impairment in the ability to receive and evaluate information or make or communicate decisions, even with the use of appropriate technological assistance, or because the individual is detained or otherwise unable to return to the United States; and
- the person has property that will be wasted or dissipated unless management is provided or money is needed for the support, care, and welfare of the person or those entitled to the person’s support and that protection is necessary or desirable to obtain or provide money.
Duties and Responsibilities of a Conservator
- Fiduciary Responsibility: One of the most critical aspects of a conservator’s role is to act as a fiduciary for the protected person. This means they must always act in the best interests of the protected person and make decisions that promote their well-being and financial security.
- Financial Management: If appointed as a conservator of the estate, the conservator must manage the protected person’s finances, assets, and property diligently. This includes paying bills, managing investments, and making financial decisions on the protected person’s behalf.
- Inventory and Reporting: Conservators are required to provide an inventory of the protected person’s assets to the court within a specified period after their appointment, usually ninety (90) days. Additionally, they must regularly, and at least annually, submit an accounting to the Court detailing income and expenses.
- Consent and Decision-Making: A conservator must seek the protected person’s input and consent to the extent possible when making decisions on their behalf. However, if the protected person lacks the capacity to make certain decisions, the conservator must act in their best interests, considering their known wishes and preferences.
- Address Change(s): A conservator is responsible to notify the Court of any changes to the conservator’s address and to the protected person’s address.
- Notification of Death: A conservator is responsible to notify the Court if the protected person dies by filing a death certificate and a final accounting.
Types of Conservatorship
- Temporary Conservatorship. If the Court determines that there is an urgent situation that will likely result in substantial harm to the person to be protected and which needs to be immediately addressed, upon the appropriate motion, the Court may appoint a temporary conservator to act while the petition for the appointment of a permanent conservator is pending. The appointment is typically made for a period of ninety (90) days, but for good cause shown may be extended.
- Limited vs. Plenary (Full) Conservatorship
Conservatorships in Massachusetts can be either limited or plenary (full). A limited conservatorship grants the conservator specific powers and responsibilities, while a plenary conservatorship grants broader authority to manage most aspects of the protected person’s financial affairs. The Court must consider whether a protected person’s rights can be preserved in specific areas and whether the conservatorship can be limited accordingly.
Massachusetts law provides that a temporary conservator and/or conservator is entitled to be paid reasonable compensation from the estate. It is important that the conservator keep detailed and accurate records of his or her time spent and expenses paid to be included on the annual conservator’s account. If the court determines that the compensation is excessive or the expenses are inappropriate, the Court may order the conservator to repay the estate, subject to terms as the court may order, including, but not limited to, costs, interest and attorney fees.
The role of a conservator in Massachusetts is of utmost importance as they safeguard the interests and well-being of individuals who cannot manage their property, financial, and business affairs independently. A conservator must carry out their duties with integrity, honesty, and a commitment to act in the best interests of the protected person. If you have a loved one who is in need of a conservator, understanding the responsibilities and duties involved will enable you to determine whether you are a good candidate for the role, to fulfill the role effectively, and to ensure the protection and dignity of the individual in need of protection.