What Is a Conservatorship? How Does It Work and When Is It Needed?
Key takeaways:
A conservatorship, also known as a guardianship, is the court-ordered authority to assume responsibility for an incapable or incapacitated person. Generally, a guardian looks after a person’s care, while a conservator handles financial matters.
Appointments often end when a child becomes an adult or a senior dies. The conservatorship of pop star Britney Spears highlighted the murkier aspects of these arrangements.
Advocates are working towards national standards to prevent abuse and help conservatees earn back their rights when they’re ready.
There are times when an individual cannot manage their personal or financial affairs. For example, a child may lose one or both parents or an adult with disabilities may need extra help. Most commonly, seniors with age-related physical and cognitive decline are the ones who require assistance when plans haven’t been made.
Though laws vary by state, a decision-maker can be appointed by a judge for a child or adult. Often, this arrangement is called a “conservatorship” or “guardianship.” Though the terms are often used interchangeably, they have distinct meanings. Below we break down the differences and explain how conservatorships work.
What is a conservatorship or guardianship?
The term “conservatorship” continues to grab headlines because of the case of pop star Britney Spears. After she had an apparent psychiatric episode in 2008, her father petitioned the court for temporary control of her affairs. A judge granted Jamie Spears permanent conservatorship that same year. Britney Spears has remained under conservatorship for more than a dozen years.
In many states, a guardianship is an appointment to oversee a person and their care, and to make day-to-day decisions. A guardian is also the term most often used for the person in charge of a “ward” or child. A conservatorship has broader meaning and usually involves an exclusive or additional financial responsibility. This can include a “conservator of the estate” or a “conservator of the person” for someone with developmental disabilities who cannot take care of themselves or their finances. In some states, conservatorships are called “adult guardianships.”
Often, conservatorship can be avoided by preparing legal documents in advance. A durable power of attorney identifies an individual authorized to make financial and medical decisions if a person becomes unable to do so on their own, such as becoming incapacitated from a health crisis. If no one is selected in advance to take charge, relatives might ask a court to appoint a conservator or guardian.
How does a conservatorship work?
Establishing a conservatorship involves a legal process that varies from state to state. Typically, a person files a petition with a court where the individual who purportedly needs help resides. The person filing is usually a relative but can be a representative of an agency. Sometimes a lawyer is required.
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Prior to a hearing, the court will arrange for an evaluation of the person who might need assistance and background checks for potential appointees. A court proceeding usually follows where evidence is presented by petitioners or their legal counsel, and testimony from interested parties is heard before a judge grants or denies the petition.
Courts usually require that the person appointed as conservator get a lawyer to represent them and a guardianship bond to protect assets from mismanagement. The conservator is often compensated for their services and must account for all expenses made on behalf of the conservatee.
Ideally, the court holds regular hearings to review the conservatorship. In reality, there is little understanding and oversight of these arrangements nationwide.
Is anything being done to fix problems with conservatorships?
Sparked by Spears’ testimony in her conservatorship case, U.S. Sen. Elizabeth Warren and U.S. Sen. Bob Casey — chair of the Senate Aging Committee — appealed to federal officials. The two senators echoed the long-standing concerns from advocates about the “potential for financial and civil rights abuses of individuals placed under guardianship or conservatorship, typically older Americans and Americans with intellectual, developmental, and mental health disabilities.”
In the letter to U.S. Health and Human Services Secretary Xavier Becerra and Attorney General Merrick Garland, the senators write that the lack of comprehensive national data on guardianships hamper efforts to “understand gaps and abuses in the system and find ways to address them.”
“This lack of data hinders the federal government’s ability to make policy changes and inform resource allocation.”
An estimated 1.3 million adults in the U.S. are currently living under guardianship or conservatorship, and their guardians and conservators control about $50 billion in assets. That’s according to research from the National Center for State Courts, which also found there could be more than 3 million people subject to these arrangements.
There has been an outcry for reform for decades. A 2018 report published by the U.S. Senate Special Committee on Aging expressed concern that “individuals lose almost all of their rights when a full guardianship order is imposed on them, increasing the risk of abuse, neglect, and exploitation at the hands of unscrupulous guardians.”
The report urged states to use a standardized, nonpartisan, model statute drafted by the Uniform Law Commission that uses the term “protective arrangement” instead of conservatorship or guardianship. Other recommendations included:
Less-restrictive alternatives to guardianship
Statewide data registries
Increased data collection by federal agencies
Opportunities to restore conservatees’ rights
Advocacy organizations focused on the fairness of conservatorships include the National Council on Disability, which works on alternatives that promote autonomy for people with intellectual and developmental challenges.
How long do conservatorships last and how do they end?
Conservatorships, often associated with elders, usually end with the death of the conservatee. Ending the arrangement is trickier when the person has a much longer life expectancy and good health.
Since Spears has been under conservatorship, she has released four albums, served as a reality competition judge and completed a multi-year Las Vegas concert residency that grossed more than $137 million. Spears petitioned to have the conservatorship—which she called “abusive”—changed, and, later, ended.
A conservator can quit if they can no longer handle the responsibilities or don’t want the job. When they resign, a judge appoints someone else.
The conservatorship itself can be more difficult to terminate, as Spears and other protected persons have discovered. Usually, the arrangement ends with a court order when the person under conservatorship dies or recovers from the incapacity. In the case of a financial conservatorship, it typically ends when the assets run out.
The bottom line
Conservatorships can be useful for protecting children, people with disabilities, individuals who become incapacitated, and elders in declining health. Federal officials and advocacy groups have called for reforms to the system. Exiting a protective arrangement can be challenging for those who seek more autonomy in handling their affairs.
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References
American Bar Association Commission on Law and Aging. (2021). Adult guardianship statutory table of authorities.
Itzkoff, D. (2008). Spears' father given permanent conservatorship. The New York Times.
Jones, Z. C., et al. (2021). Britney Spears' conservatorship, explained. CBS News.
National Center for State Courts. (n.d.). NCSC.
National Council on Disability. (n.d.). National council on disability.
National Council on Disability. (2018). Beyond guardianship: Toward alternatives that promote greater self-determination.
Nolo. (n.d.). Conservatorships and adult guardianships.
Uekert, B. K., et al. (2011). Adult guardianships: A "best guess" national estimate and the momentum for reform. National Center for State Courts.
Uniform Law Commission. (n.d.). Uniform law commission.
Uniform Law Commission. (2020). The Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act: A summary.
United States Senate. (2021). Letter to DOJ and HHS re conservatorship.
United States Senate Special Committee on Aging. (2018). Ensuring trust: Strengthening state efforts to overhaul the guardianship process and protect older Americans.
