Guardianship Encyclopedia
How is the Conservatee Protected?
The probate court often appoints an attorney to represent the alleged
incapacitated person. A court investigator is also appointed by the court to determine
the need for a conservator and to recommend a suitable person to serve in that role.
All issues and information are brought before a probate court judge who decides
if the person is incapacitated or in need of protection and, accordingly, appoints
a conservator. The appointed fiduciary is accountable to the court for his or her
work. The fiduciary must report to the court and receive the court's approval in
carrying out his or her responsibilities. The court requires the posting of a surety
bond by the conservator, which is intended to protect the assets of the conservatees
estate.
The fiduciary as personal representative is an individual appointed
by the probate court to administer the estate of a person who has died, referred
to as a decedent. A personal representative will either act as an Executor if named
in the will, or as an Administrator if not named in the will, or
if there is no will. The personal representative inventories and safeguards assets,
collects income, verifies and pays obligations, identifies and notifies heirs and
beneficiaries, and distributes assets.
The fiduciary as representative payee is a person designated by
the Social Security Administration or other retirement plans to receive the income
and pay the expenses of an incapacitated individual.
The fiduciary as Agent Under Power of Attorney. The responsibilities
of a fiduciary acting as an Agent under Power of Attorney include the following:
For health care, the fiduciary acts as attorney-in-fact to make health-care decisions,
including placement, medical, treatment and final burial arrangements. More recently
an Advance Health Care Directive provides this guidance. For financial matters,
the fiduciary conducts personal and financial business pursuant to the client's
written instructions.
Cost of Services for Fiduciaries
In most court-supervised cases, the Probate Court approves reasonable fees. In non-court-supervised
cases, fees may be addressed in the estate planning documents. Professional Fiduciaries
have a published fee schedule.