A co-conservator is a person appointed by the court to co-manage, together with another person who is usually a family member, the property of an incapacitated adult. In California, there is guardianship for a minor child and conservatorship for an adult person. In New York, conservatorship has been replaced by the guardianship of the property of an incapacitated adult. A co-conservator in New York is now called the property co-guardian.
Conservatorship or guardianship
Under Article 81 of the New York Mental Hygiene Law, a person can file guardianship proceedings to be declared guardian (previously known as a conservator) over an alleged incapacitated adult. Guardianship over an incapacitated adult can be over the person or over the property or both over the person and property. Conservatorship, however, always refers to guardianship over the property of an adult.
Although family members who are appointed guardians don’t normally receive compensation, property co-guardians (co-conservators) who are corporate financial institutions charge a commission for their services and are normally used for properties with a high value.
Declaration of conservatorship or guardianship
It is not easy to be declared conservator or property guardian in New York. The judge has to declare that the alleged incapacitated person is indeed incapacitated with regard to making a specific type of decision. The threshold for this declaration or finding is quite high.
To aid the judge in making this declaration, the judge will appoint a court evaluator who will investigate and report whether a guardian should be appointed, and if yes, what type of powers the guardian should have. The court will always hold a hearing before depriving any alleged incapacitated person of the right to make decisions regarding his person or property.
A lawyer is always recommended to represent both the petitioner who wants to have a guardian appointed and the alleged incapacitated person.
To have a guardian over the property of an alleged incapacitated adult appointed, the court does not focus on the mental or physical condition of the person but instead evaluates the decisional capacity and functional limitations of the alleged incapacitated person.
Aside from the court evaluator’s report, the judge will encourage the alleged incapacitated person to participate in the proceeding by asking the alleged incapacitated person his views on the proposed guardianship. This allows the judge to evaluate the functional and decisional processes of the alleged incapacitated person.
Even if the court evaluator’s report recommends the appointment of a guardian, the judge can still make his own independent decision on whether guardianship is needed based on his interaction with the alleged incapacitated person.
Under Matter of Maher, 207 A.D.2d 133 (1994), in deciding whether to appoint a guardian (or conservator) for a person’s property, the court makes a two-pronged determination.
First, the court shall consider the report of the court evaluator and the sufficiency and reliability of available resources (i.e., powers of attorney, trusts, representatives) to provide for the personal needs or property management of the alleged incapacitated person.
Second, the determination of incapacity must be based on clear and convincing evidence that the person is likely to suffer harm because he is unable to provide for property management and cannot adequately understand and appreciate the nature and consequences of such inability. So even if incapacity is present, the guardian will not be appointed if other resources and alternatives (i.e., a durable power of attorney, a healthcare proxy) are available to protect the property of the incapacitated person.
Avoiding a guardianship or conservatorship proceeding
To avoid having someone you haven’t chosen be declared as your guardian (in case you become incapacitated in the future), an estates lawyer will advise you to execute a durable power of attorney for finances and a health care proxy.
A durable power of attorney for finances will still be effective despite your incapacity (i.e., if you develop Alzheimer’s or suffer from mild dementia when you’re older). Your appointed attorney-in-fact will be able to perform certain actions (depending on the grant of authority coming from you), such as:
- pay everyday expenses
- withdraw money from your bank accounts
- pay your taxes
- hire professionals such as accountants and attorneys
- collect government benefits such as Medicare and Social Security
A healthcare proxy, on the other hand, will be your designated agent who will make decisions with respect to health care matters. For example, your health care proxy can make decisions on whether to continue life-extending procedures (such as a feeding tube), donate your organs, consent or refuse antibiotics and other drugs, and consent or refuse treatments such as chemotherapy, dialysis, surgery, or blood transfusions.
Under Matter of Maher (supra), the court will not appoint a property guardian or conservator even if you are incapacitated, for as long as sufficient resources are available that allow you to manage your property even during your incapacity.
A petition for guardianship or conservatorship can be a stressful matter for the alleged incapacitated person. You can watch Britney vs. Spears on Netflix to see how it can wreak havoc, not only on the alleged incapacitated person but also on the family members who pushed for conservatorship or guardianship.
Ultimately, it’s always best to avoid petitions of guardianship or conservatorship by executing powers of attorney and health care proxies to ensure that your property will be managed by someone you have chosen and you trust even during your incapacity.
If you feel that someone in your life needs to have another person appointed as property guardian or conservator, or if you are an alleged incapacitated person subject of a guardianship proceeding, we at the Law Offices of Albert Goodwin are here for you.
We have represented both types of parties in guardianship proceedings, and we know how to petition or defend these matters. We have offices in New York, NY, Brooklyn, NY, and Queens, NY. You can call us at 718-509-9774 or send us an email at firstname.lastname@example.org.