Conservators do not have unbridled powers. Conservatees who are mentally competent generally maintain the right to make or change their own last will and testament. However, even if a conservatee is incompetent, a conservator should not independently make or change a conservatee's will for him. Generally, a conservator does not have the inherent power to alter an existing will or make a new will for a conservatee.
Seeking Court Approval
Some states allow a conservator to seek special permission from a probate court to make or change a conservatee's will. For example, Minnesota courts may approve a conservator's request to make or change a will for a conservatee. The conservator must give notice to all parties potentially affected by the request. A court hearing must occur and a judge must expressly authorize the specific request made before the conservator may proceed with creating or changing a conservatee's will.
Estate Planning Power
Conservators generally have the power to make a variety of decisions regarding a conservatee's estate planning. For example, taking action to minimize estate taxes for the benefit of a conservatee's estate may be proper. Under California law, certain conservatorship powers that can impact estate planning fall under the substituted judgment rule. As the name suggests, the rule allows a conservator in certain circumstances to employ her decision-making skills for the benefit the conservatee. Individual conservators should check their state law to determine the scope of substituted judgment rules and when court approval is required to utilize them.
Conservatee's Best Interests
A conservator must always act in his conservatee's best interest. A conservator petitioning a court to make or change a conservatee's will must show a judge the request is in the conservatee's best interests. Making or changing a will to benefit anyone other than the conservatee breaches the legal duty of trust a conservator owes to her conservatee. A conservator may also petition a court to set aside a will if he believes a conservatee was incompetent or pressured by someone at the time of signing. Court petitions, such as these, aimed at protecting a conservatee's estate interests are considered proper.