Can a Conservator Change a Will?

By Maggie Lourdes

Generally, conservators are appointed by probate judges to help manage the affairs of people, called conservatees, who are unable to partially or fully manage their financial affairs. Parents regularly name conservators to manage property for minor children in case they die. Conservators may also be appointed for adult individuals suffering from mental, emotional, or physical disabilities. Conservators can be temporarily or permanently appointed to address short- and long-term needs for financial oversight.

Conservator's Powers

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.

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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.

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References

Related articles

Legal Guardianship in Alabama

A legal guardianship in Alabama is a court proceeding used to appoint someone to be responsible for the personal well-being of a minor or incapacitated adult. A person under a guardianship is called a ward. If the ward needs someone to manage his property or money, Alabama law allows for the appointment of a guardian of the estate, which in Alabama is known as a "conservator." Depending on circumstances, the same person can be appointed as guardian and conservator.

Legal Guardianship for an Incompetent Parent

A guardian is a party who undertakes legal responsibility and authority for the care of someone else, known as a ward. An adult can become a ward only if he is declared legally incompetent. If your parent is a victim of a disability that prevents him from meeting his basic needs, you may petition a court to appoint a guardian.

Guardian Vs. Custodian of a Minor Child in a Will

A guardian and custodian become necessary in the event a child's parents pass away, leaving assets and an inheritance behind. Minor children cannot inherit money or assets outright, so a custodian is named or appointed to manage the assets until the child reaches an appropriate age. A guardian, in contrast, is responsible for overseeing the child's day-to-day physical and financial well-being. These positions may be named in a parent's will or appointed by the court.

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