Rampulla & Newstad LLP

In the tug of war between individual autonomy and the protection of vulnerable individuals, conservatorships serve as a somewhat controversial legal instrument. Conservatorships grant a designated person the authority to make decisions on behalf of someone deemed unable to manage their own affairs. In recent years, these arrangements have made headlines with high-profile cases that have sparked debates about the balance between personal freedom and the need to safeguard those who are incapable of managing their finances, health, or other legal decisions.

In estate planning, we always hope clients do their planning early, when everyone involved can execute their documents and make their wishes known. But when that doesn’t happen, we have to be able to protect the wishes and well-being of the incapacitated person. This is why a Court will appoint someone to be a conservator of that person to make whatever decisions they need help making.

Last week, notable comedian and former talk show host, Jay Leno, filed for a conservatorship over his wife, Mavis Leno, who is living with dementia. The purpose of the conservatorship is to execute an estate plan for Mavis, that Jay Leno believes his wife would have executed if she were able. The Lenos have been married for 43 years.

In order to be a conservator for someone, you must petition a court asking for the right to be the conservator of an incapacitated person. An investigation and hearing are held and the Court decides whether to grant the conservatorship. Even if you are appointed, there are individuals who will check in to make sure you are doing everything you are supposed to for the person you are taking care of.

While conservatorships are intended to help the incapacitated individual, they raise questions about individual autonomy, and the freedom for people to make their own life decisions (even if they’re not the best decisions for them).

There are different kinds of conservatorships, and the definition varies across different states. There is financial conservatorship, dealing with the person’s finances and legal decisions, and there are personal conservatorships which may cover medical decisions, housing, education, transportation and other activities of daily life. The conservatorship may also be general or limited in nature, and may go on for a long time, or just be temporary while someone is recovering.

Keep in mind, conservatorship is different from guardianship and adult adoptions, and also different from special needs trusts, powers of attorney, medical health directives, and living wills! While some of these other concepts overlap with conservatorships, they are not the same thing. Make sure you check with an attorney before proceeding with any of the above legal avenues, to make sure all of your goals are being met!