Conservatorship abuse is more common than you think. Conservatorships protect individuals who cannot make financial decisions for themselves. Unfortunately, all too often individuals managing a conservatorship abuse their power.
This article covers some of the warning signs of conservatorship abuse, how you can help your loved one, and what some lawmakers are doing to beef up protections for incapacitated people.
Suspect Conservatorship Abuse?
If you suspect your loved one’s conservator is taking advantage of them, it’s important to seek help right away. Your loved one’s finances are there to help take care of them – not for someone to exploit. Call 303-688-0944 or click here to set up a free case assessment with a member of our Elder Law & Probate Team to explore your legal options.
The Movement to Increase Rights for People In Conservatorships
Two U.S. Representatives have taken up the grassroots campaign called #FreeBritney. Their efforts could give more rights to incapacitated people overseen by conservatorships.
U.S. Reps. Charlie Crist (D-Fla.) and Nancy Mace (R-S.C.) plan to introduce a bipartisan bill called the Freedom and Right to Emancipate from Exploitation Act or the FREE Act. The legislation is also called the Free Britney Act.
“Britney Spears’ conservatorship is a nightmare. If it can happen to her, it can happen to anyone,” Mace said in a statement released on her congressional webpage. “Conservatorships undoubtedly protect countless vulnerable Americans from abuse, but the case of Britney Spears reveals a darker side to a system meant to protect people.”
Practically all aspects of the pop star’s life have been overseen by a conservatorship since 2008 after her public struggle with mental health issues.
Spears’ conservatorship gave two people, one being her father, total control of her finances and health decisions.
A judge recently (July 2021) denied Spears’ request to remove her father from her conservatorship. Spears testified the conservatorship was abusive, adding it went so far as to control her ability to have more children.
Spears has since hired a new lawyer to fight the conservatorship.
Why Conservatorships are Needed
When an individual becomes incapacitated and cannot handle their finances a court can order a conservatorship to protect them
Generally, these are elderly people or those who have become debilitated in some way. For instance, the court may appoint a conservator for someone whose dementia or mental illness has become so severe it greatly affects their capacity to make sound decisions.
Conservatorships are strictly limited to the management of someone’s financial estate in Colorado.
How the Free Britney Act Would Change Conservatorships
If the proposed federal bill becomes law, the Free Britney Act would give conservatees – individuals under a conservatorship – the legal right to have a conservator that does not stand to financially gain from the powerful role.
The discussion draft of the bill states that the conservatee has the right to ask a court to replace a private conservator or guardian with one appointed by the State “who is free from any financial conflict of interest.” Read the full draft here.
Private Conservators in Colorado
In Colorado, private conservators are very common. Courts often appoint family members or close friends for the important role.
Although most conservators are decent people, they often stand to financially gain from the protected person. And, unfortunately, too many conservators abuse their power and take advantage of the incapacitated loved one.
Rights of Colorado Protected Persons
In Colorado, conservatees – also called protected persons – have the right to ask the court to end their conservatorship.
“On petition of a protected person, a conservator, or another person interested in a protected person’s welfare, the court may terminate the conservatorship if the protected person no longer meets the statutory requirements for the creation of a conservatorship.” C.R.S.A. § 15-14-431(3)
State law requires the court to review whether the oversight is still needed when it is petitioned to cease a conservatorship. If it’s not, the conservatorship must end.
“Unless it is proved by clear and convincing evidence that continuation of the conservatorship is still statutorily warranted and is still in the best interest of the protected person” the court by law must terminate the conservatorship. C.R.S.A. § 15-14-431(4)
What to Do if You Suspect Conservatorship Abuse
You must act as quickly as possible if you suspect your family member’s conservator is abusing their financial duty.
Signs of abuse may not always be obvious. Common warning signs can include:
- the conservator set up a charity in your loved one’s name
- financial gifts made to your family member’s “new friend”
- your loved one is suddenly isolated from family and long-time friends
- new professionals, like nurses, attorneys, and accountants, are brought in to help care for your loved one
According to the Colorado Judicial Branch, “Any person concerned about the Protected Person’s [conservatee’s] financial situation, or any person who would be negatively affected if the Protected Person’s finances are not managed correctly, can ask the court to replace the current conservator.”
That means you do not need anyone’s permission before you ask the court to remove or assign a different conservator.
Having an attorney on your side can ensure you have an effective strategy to replace a bad conservator.
More About Conservatorships
They’re Often Indefinite
Conservatorships usually continue until the conservatee either recovers from their incapacitation or passes away.
The appointed conservator gains total financial control over the conservatee’s estate.
Powers of Attorney
The appointment of a conservator does not automatically override someone’s financial power of attorney unless the court orders otherwise.
A financial power of attorney allows someone called an agent to make financial decisions for you. They can do things like pay your bills, cash checks, and make day-to-day financial decisions for you.
If you execute a good estate plan before you become incapacitated, a conservatorship can generally be avoided.
Duties of a Conservator
In an effort to prevent conservatorship abuse, Colorado courts require them to report about the incapacitated person’s money.
State law demands that conservators submit a financial plan within 90 days of their appointment. They must also provide an annual report detailing the protected person’s finances.
While conservators hold a lot of power, there are some limitations on the types of financial actions they can carry out. For instance, conservators must get court approval before they can sell a protected person’s home.
“(2) A conservator, acting reasonably and in an effort to accomplish the purpose of the appointment, and without further court authorization or confirmation, may: (a) Collect, hold, and retain assets of the estate, including assets in which the conservator has a personal interest and real property in another state, until the conservator considers that disposition of an asset should be made; …” C.R.S. § 15-14-425
A conservator of an incapacitated adult:
- is responsible for managing an incapacitated person’s property and financial affairs.
- does things like pay the incapacitated person’s bills, deposit checks, or even takes care of their home if they’re living in a care facility.
- continues or participates in the operation of any business of which the incapacitated person has ownership.
A conservator of a minor:
- manages a minor child’s financial affairs.
- has a legal obligation to use and protect the minor child’s money in a fiscally responsible way.
- manages and invests assets appropriately.
When Conservatorships Can be Terminated
As noted earlier, conservatorships tend to be indefinite. Adult conservatorships terminate when the protected person’s passe or the court determines it is no longer needed.
For minors overseen by a conservatorship, it generally ends when the child turns 21 years old.
We Fight Conservatorship Abuse
Our Elder Law Team can help you create a strong case to present to the court if you suspect conservatorship abuse.
If the court finds abuse, the judge can order the unscrupulous conservator to pay back what they stole from your family member’s estate and even hand down other penalties.