A Conservatorship is to an adult what a Guardianship is to a child, and like Guardianships, there are two different types of Conservatorship: a Conservatorship of the Estate and a Conservatorship of the Person
A Conservatorship of the Estate is proper when an adult, for whatever reason (incapacity or otherwise) is substantially unable to manage his or her financial resources or resist fraud or undue influence. In these circumstances, any interested person can initiate a Conservatorship proceeding and have themselves or another appointed as Conservator of the Estate to manage the assets of the Conservatee (incapacitated person).
A Conservatorship of the Person is proper when an adult, for whatever reason (incapacity or otherwise) is substantially unable to manage his or her mental and/or physical needs. In these circumstances, any interested person can initiate a Conservatorship proceeding and have themselves or another appointed Conservator of the Person to manage the mental and physical needs of the Conservatee (incapacitated person).
The disadvantage to a Conservatorship of any type is primarily its cost. To establish a Conservatorship requires employment of an attorney and can run thousands of dollars, particularly if the incapacitated person objects, which often they do. In addition, there are costs associated with the administration of Conservatorships, which include the court filings, which are required so that the court may supervise the Conservatorship to ensure no improprieties are occurring.
Conservatorship of the Estate
The properly drafted and funded Living Trust will completely avoid a Conservatorship of the Estate, and therefore all the costs associated with it.
Remember, the concept of the Living Trust for probate avoidance purposes is that the Living Trust, not the individual who created the Living Trust is technically the owner of the assets. Therefore, upon death there are no assets, which are owned by the decedent, and thus there is no probate, even though during his or her lifetime as trustee the creator of the Living Trust still had complete control over all the assets. After the death of the person who created the Living Trust, another person who was named by the creator of the Living Trust as a successor trustee becomes the current trustee, and that person then is authorized to act on behalf of the Living Trust.
This same concept applies to a Conservatorship. Thus, with a fully funded Living Trust, there are no assets which are owned by the individual upon his or her incapacity, and therefore there are no assets over which to have a Conservatorship. All of the assets are owned by the Living Trust, which by its terms provides that upon incapacity of the creator of the Living Trust, the person named as successor trustee becomes the current trustee and can manage the trust assets for the benefit of the incapacitated creator of the Living Trust.
A PROPERLY DRAFTED AND FUNDED LIVING TUST AVOIDS THE NEED FOR A CONSERVATORSHIP OF THE ESTATE BY ALLOWING THE SUCCESSOR TRUSTEE TO MANAGE THE TRUST ASSETS DURING THE PERIOD OF INCAPACITY.
Conservatorship of the Person
With a properly funded Living Trust, you will not need a Conservatorship of the Estate because your assets will be owned by your Living Trust, and managed by your successor trustee after your incapacity; however, you may still need a Conservatorship of the Person to physically care for the incapacitated person.
A LIVING TRUST DOES NOT AVOID A CONSERVATORSHIP OF THE PERSON