BASIC INFORMATION ABOUT CONSERVATORSHIPS OF ADULTS AND MINORS AND PROTECTIVE ORDERS

The Estates and Protected Individuals Code includes proceedings regarding conservatorships and protective orders for minors and adults. This article provides general information about conservatorships and protective order. Specific information about court proceedings for establishing a conservatorship or obtaining a protective order can be found in the article titled: Court Proceedings In Conservatorships.

A conservator is a person appointed by a court to make financial decisions for another, called a ward or protected person. The individual needing the conservator can be either a minor or an adult. 

The law regarding conservatorships is very technical. There are special requirements for the appointment and many duties and responsibilities imposed on the conservator that usually require legal assistance. This article summarizes only some of the laws regarding conservatorships.

A conservator is to be distinguished from an attorney-in-fact. An attorney-in-fact is a person authorized by an adult in a written document to perform specified acts on behalf of the adult. The document specifying the authority is called a power of attorney.

If the document states that it is a durable power of attorney, then it can be used even though the maker becomes mentally incompetent to make financial decisions.

An important distinction between a conservatorship and a power of attorney is that the court appointed conservator must file annual accounts with the court unless ordered not to. These accounts must also be served on the interested persons in the conservatorship.

An attorney-in-fact is not required to account to the court for any activities unless a lawsuit is first filed and the court orders an accounting. The attorney-in-fact accounts only to the person making the power of attorney unless otherwise ordered by a court.

A conservator is appointed by a court after a hearing and is given authority by law. The court may restrict that authority, including authorizing the conservator to do only a specified act. For example, the court may appoint a conservator to receive monthly pension checks of a ward, deposit them into a certain account, and then pay them out to specified payees. Or the court may prohibit the conservator from selling the ward’s house or certain corporate stock.

All conservatorships are started by the filing of a petition asking for the appointment of a named person as conservator. There are specific statutory requirements for the appointment that differ between a conservatorship for a minor and for an adult. MCL 700.5404

A conservator is appointed for a minor who owns money or property or has business affairs that are jeopardized or prevented because of the minority status. For example, the minor is to receive money from a deceased grandparent’s estate. Or the minor, after being bitten by a dog, is to receive insurance settlement monies because of the injury.

For an adult, a conservator may be appointed because the person is unable to manage his or her property and business affairs effectively for specified reasons. These include mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, confinement, detention by a foreign power, or disappearance.

Additionally, it must be shown either that the adult has property that will be wasted or dissipated unless properly managed, or that money is needed for the individual’s support, care, and welfare, or those supported by the individual, and protection is needed to provide the money.

Additionally, an adult who is mentally competent may request the appointment of a conservator over his or her property because the adult is unable to manage his or her property and affairs effectively due to age or physical infirmity.

Sometimes a person meets the criteria for the appointment of a conservator but there is only one act that needs to be taken in relation to the individual’s estate or business affairs. For example, a person needs to sign a deed transferring property previously sold on a land contract and is now unable to sign the deed.

In this situation, a conservator is not appointed. The court merely issues a protective order that directs a person to do the specified act on behalf of the individual. When the transaction is completed, the authority ends.

Many persons are eligible to file a petition for a conservator’s appointment or for a protective order. However, the statute specifies those who only have the authority to file the petition.

Included are the person to be protected and a person who is interested in the individual’s estate, affairs, or welfare, like a parent, guardian, or custodian. Additionally, it may be a person who would be adversely affected by lack of effective management of the individual’s property and business affairs.

A petition for appointment of a conservator or for a protective order requires considerable information besides facts showing the need for the conservatorship. It must name the presumptive heirs, identify the attorney in fact under a durable power of attorney and the guardian, if known, and name each governmental agency paying benefits to the individual to be protected or before whom an application for benefits is pending.

The petition requires a general statement of the individual’s property with estimated values. This includes all real and personal property and all sources of monthly income, including pension, social security, and veterans benefits, if any, and compensation from any source.

For information regarding the action that must be taken after the petition is filed with the court, see the article titled: Court Proceedings In Conservatorships.

More information on this topic can be found at the Calhoun County Courts Probate Notes site.

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