Conservatorship Basics


Conservatorship Basic Information:

• Definitions
• Duties of a Conservator
• Liability of a Conservator to Protected Person
• Liability of a Conservator to Third Parties

DEFINITIONS:

• Conservator: A person appointed to be responsible for the financial affairs of a PP. In order for the court to appoint a Conservator, the PP must be “financially incapable”.

• Fiduciary: A person appointed to assume duties for a PP under Chapter 125. Generally, this includes a Guardian or Conservator or Temporary Guardian or Conservator.

• Financially Incapable: A condition in which a person is unable to manage his or her financial resources for various reasons including mental and physical illness or disability, chronic drug or alcohol use, confinement, disappearance, and others. “Manage financial resources” means those actions needed to hold, administer, and dispose of all property, benefits and income.

• Guardian: A person appointed to be responsible for the “person” of a PP. In order for the court to appoint a Guardian, the PP must be “incapacitated” and in need of a Guardian.

• Protective Order: A court order to protect the person or the estate of a Respondent or Protected Person.

• Protected Person (“PP”): A person for whom a Protective Order has been issued.

• Protective Proceeding: Any proceeding governed by ORS Chapter 125. Generally this includes Guardianships, Conservatorships, Temporary Guardianships and Conservatorships, but can also include other actions, including direct court action in the person’s affairs.

• Respondent: A person for whom a Protective Order is sought.

DUTIES OF A CONSERVATOR:

A Conservator undertakes serious duties and responsibilities that are required by the laws of Oregon. Chapter 125 of the Oregon Revised Statutes governs Conservatorships and outlines those responsibilities.
A Conservator must:

• Promptly report to the court any change of the Conservator’s name, residence, or mailing address.

• Take immediate control of and safeguard the Protective Person’s assets and income. The property of the estate is the Conservator’s responsibility.

• Keep all money, bank accounts, and other property of the estate separate from the Conservator’s own and all other person’s property.

• File with the court an Inventory of all of the property of the Protected Person that the Conservator knows about with estimates of the value of the items listed as of the date the Conservator,s appointed by the court. The Inventory must be filed within 90 days after the date of appointment, unless the court grants an extension of time.

• If the estate includes real property, record a certified copy of the Inventory or an abstract in the deed records of each county in which the estate owns property. File with the court proof of this recording.

• File an account with the court each year. The accounting must be filed within 60 days of the anniversary of appointment as Conservator, unless the court grants an extension of time. For us to assist a Conservator with an accounting we will need an accounting information form completed. A copy of this form is in our Forms section of this website. The accounting must include:

- The time period of the accounting of value as of the date of appointment as Conservator;

- For the first accounting, the total value of the property of the Protected Person as shown on the Inventory;

- For the second or later accountings, the ending balance of the prior accounting through the current balance as of the ending date of the accounting period;

- A list of all money and property received during the accounting period;

- A list of all disbursements made during the accounting period, including date, check number, payee, amount, and purpose; and

- The amount of bond posted by the Conservator during the accounting period.

With the accounting the Conservator must send vouchers or canceled checks unless the court waives this requirement.

• Send copies of each accounting to the following people:

- The Protected Person (if age 14 or older), unless service would not help the Protected Person understand the Proceedings; and

- Any person who has filed with the court a request for notice of the Proceedings.

• Prepare and file all federal and state income tax returns when due and pay the taxes due.

• File a final accounting when the Conservatorship ends because the Protected Person reaches age 18, dies, or the Conservatorship is no longer necessary.

• Keep any bond required by the court in effect during the entire term of the Conservatorship, unless the court orders otherwise.

• Get court approval before paying fees to the Conservator, the Protected Person’s Guardian, or to the attorney for the Guardian or Conservator.

• Get court approval before paying for room and board to the Protected Person’s Guardian or the Guardian’s family members.

• Get court approval before paying the fees of a court visitor or a doctor if the fees are for services done because of an objection to a petition or motion to the court.

• Get court approval before selling an adult Protected Person’s primary residence.

• Get court approval before making certain gifts.

LIABILITY OF CONSERVATOR TO PROTECTED PERSON:


Standard of care

• The Conservator is held to the standard of care presented under Oregon’s prudent investor rule, ORS 128.196.

• The court may apply a higher standard of care to a Conservator who claims to have greater than ordinary skill or expertise. ORS 125.225(2).

The Conservator may be personally liable for the following:

• Sums not properly accounted for.

• Attorney fees incurred by a Respondent or PP because of the Conservator’s failure to perform a fiduciary duty or other duty imposed under the law. ORS 125.025(3)(e).

• Funds lost because of failing to follow the statutory investment standard.

• Issues of liability of the Conservator to the estate can be brought before the court by an objection to an accounting or by separate action for surcharge, indemnification, and so on. ORS 125.485(4). The court may also act on its own motion. ORS 125.025.

LIABILITY OF CONSERVATOR TO THIRD PARTIES:


In general the Conservator is not personally liable on contracts entered into as Conservator. See ORS 125.485 and 125.490 for further explanation.

The Conservator is personally liable for obligation arising from ownership or control of the estate property and torts committed during administration only if the Conservator is personally at fault. ORS 125.485(2).
Forms



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Disclaimer: The information contained in pages found at www.broesderlaw.com are publications of Arant & Broesder, LLC for general purposes only and should not be construed as legal advice or legal opinion on any specific facts or circumstances. If you have specific legal questions, you are urged to consult your own lawyer concerning your own situation.