Do You Want a Stranger to Make Financial Decisions on your Behalf? Conservatorship in Massachusetts.

Conservatorship is a legal arrangement that often comes into play when someone cannot manage their own affairs due to age, illness, or disability. It can affect families, individuals, and even public figures, making it a topic worth understanding clearly. This post explains what conservatorship means, how it works, and what you should consider if you or a loved one might need one.

What Is Conservatorship?

Conservatorship is a court-appointed responsibility where one person, called the conservator, is given authority to manage the personal and financial affairs of an incapacitated person, known as the conservatee. This usually happens when the conservatee cannot make decisions for themselves due to mental or physical limitations.

Under Massachusetts law, the purpose of a conservatorship is to "encourage the development of maximum self-reliance and independence of a protected person and make protective orders only to the extent necessitated by the protected person's limitations and other conditions warranting the procedure." M.G.L. c. 190B, § 5-407.

An individual may be appointed as conservator so long as they are deemed a qualified person. M.G.L c. 190B § 5-407(b)(1). In other words, the appointed conservator may be someone that you or your family do not know.

What Powers Could Be Granted to a Conservator?

A conservator wields substantial power to control the financial and business affairs of the conservatee.

Under Massachusetts law, an appointed conservator may be vested with all the powers over the property and business affairs of the protected person which are necessary for the best interests of the protected person and members of his/her family. M.G.L c. 190B § 5-407(d).

A list of examples are as follows:

• Power to make gifts

• Power to sell real estate (including marital property rights)

• Power to create revocable and irrevocable trusts

• Power to amend revocable trust(s) created by the protected person

• Power to elect options and change beneficiaries under insurance policies and annuities

• Power to surrender annuities and insurance policies for their cash value

• Power to make, amend, and revoke the conservatee's will.

This list contains only some of the powers a conservator may be granted. and demonstrates the substantial power and control a conservator could have over the protected person's finances.

When Is Conservatorship Needed?

Conservatorship is typically considered when an individual cannot care for themselves or manage their finances safely. Common situations include:

• Elderly adults with dementia or Alzheimer’s disease who forget to pay bills or take medications.

• Adults with developmental disabilities who need help making decisions.

• Individuals recovering from serious injuries or illnesses that impair judgment.

• People with severe mental health conditions that affect their ability to function independently.

  
  

In Massachusetts, any interested individual or entity - such as a nursing home with care and custody of the individual - may petition the court for a conservatorship.

How Does the Conservatorship Process Work?

The process begins when an interested person files a petition for the appointment of a conservator with the court of proper jurisdiction. The individual filing the petition is known as the "Petitioner." The petitioner must demonstrate that the requirements of M.G.L c. 190B § 5-407 (b)(1)-(8) have been satisfied - which includes:

• Medical evaluations dated within thirty (30) days of the hearing assessing the conservatee’s capacity.

• Proof that the subject of the proceeding is disabled.

• Evidence that the appointment is necessary or desirable as a means of providing continuing care and supervision of the property and business affairs of the person to be protected.

• A demonstration that the requested relief is the least restrictive means.

  
  

If successful, the appointed conservator will be provided with an order, decree, and letters of appointment granting the conservator authority to make decisions on behalf of the protected person.

Real-Life Example

Consider an elderly woman named Mary who developed Alzheimer’s disease. She began forgetting to pay bills and left the stove on several times. Mary's daughter is unable to care for her because she has a full-time job and cares for her two children. As a result, Mary is placed at a nursing home.

While at the nursing home, Mary fails to make payments for the care, support, and services she is being provided.

Since Mary has a condition (i.e., Alzheimer's disease) that interferes with her judgment and ability to make financial decisions (i.e., forgetting to pay bills), the nursing home petitions the court for an appointment of a conservator to manage Mary's finances because Mary's condition renders her unable to do so herself.

What to Do If You Need Conservatorship

An individual appointed as a conservator wields substantial power to control the financial and business aspects of another’s life.

The decisions a conservator makes could have a substantial impact on the financial landscape of the protected person and their immediate family. Such decisions could be made through the conservator's determination that such as decision is in the best interests of the protected person and/or their immediate family.

If you or a loved one requires a conservatorship and do not want the possibility of a non-related stranger being appointed, then it is important that you consider speaking with an experienced attorney to take action and guide you through the conservatorship process.