Practice Areas

Conservatorship

A conservatorship is a Court proceeding where: (1) the Court determines that an individual is in need of assistance in managing his/her money and/or property, and (2) the Court appoints someone to provide such assistance. Generally, there are two types of conservatorships: (1) a conservatorship of an incapacitated individual, and (2) a conservatorship of a minor.

To establish a conservatorship for an incapacitated individual (including a minor), a person must petition the Court for the appointment of a conservator. In order to appoint a conservator, the Court must first determine that the individual is unable to manage property effectively because of an impairment in the ability to receive and evaluate information or to make or communicate decisions, even with the use of reasonably available technological assistance or because of another physical or mental impairment, or because the individual is missing, detained, or unable to return to the United States. The Court must also determine that the there is property that will be wasted or dissipated unless management is provided, or money is needed for the support, care, education, health, and welfare of the individual (or of other persons who are entitled to the individual’s support and that protection is necessary or desirable to obtain or provide money).

To establish a conservatorship for a minor who does not other otherwise fall into the category of an “incapacitated individual,” the Court must determine either: (1) that the minor owns money/property requiring management or protection that cannot otherwise be provided, (2) the minor has, or may have, business affairs that may be put at risk or prevented of the minor’s age, or (3) money is needed for support and education and that protection is necessary or desirable to obtain or provide money.

The process to obtain the appointment of a conservator is lengthy and very costly. There are many statutes and Court rules that govern the requirements of what information must be included in the petition, what procedures must be followed, and which individuals must be notified of the proceeding and given an opportunity to respond to the petition. These requirements make it very difficult for someone to commence a conservatorship proceeding without the assistance of legal counsel. As well, the Court may appoint an individual referred to as a Kokua Kanawai to conduct an independent investigation of the petition and any matters relevant to the petition. The Kokua Kanawai will report its findings and recommendations to the Court. The fees and costs associated with the appointment of the Kokua Kanawai add to the costs of the conservatorship proceeding. In addition, there will be at least one Court hearing associated with the conservatorship petition. If the matter is complicated and/or contested, there could be multiple Court hearings adding to the length and cost of the proceedings. Finally, once appointed, the conservator will continue to report to the Court every one to three years, which further increase the attorneys’ fees and expenses.

Sometimes circumstances arise that are unexpected making a conservatorship proceeding necessary. However, in many situations, proper estate planning can help avoid such costly and time-consuming Court proceedings.