Beller Law, PL, explains some basic concepts of conservatorship in Florida. For more detailed information, or if you are considering a conservatorship, you should speak with our experienced estate planning attorney.
What Is a Conservatorship?
Florida’s definition of conservatorship is far more limited than what people often think. You might have the impression that a conservator is someone who manages a person’s affairs when they’re mentally or physically incapacitated. While this may be true in other states, in Florida, that type of arrangement is called guardianship.
A conservatorship in Florida is reserved primarily for people who go missing. When people go missing, they may need someone to manage their personal and financial affairs in their absence. This is where a conservator would step in.
In a conservatorship proceeding, one person will petition the court with evidence that another person is missing, as defined under the law. They’ll ask the court to appoint them as a conservator, specifically asking to stand in the missing person’s place to deal with their affairs until they are located.
Once appointed, conservators have the same powers as guardians under Florida law. This includes the ability to:
- Manage the missing person’s assets and finances,
- Sell the missing person’s property, and
- Collect income or profits from the missing person’s property.
A court may limit the conservator’s powers or give them unlimited power to deal with the missing person’s property.
No Power of Attorney
Under the law, a court will only order conservatorship if the missing person doesn’t otherwise have a power of attorney. A power of attorney is a legal document where you can appoint someone to manage your property, finances, medical information, and health-related issues if you are unable to act. If the missing person signed a power of attorney, then there’s no need for a conservatorship. The person appointed under that document can manage their affairs.
Necessity
The court will also only order conservatorship if the person petitioning can show necessity. Specifically, the court will determine if a conservatorship is necessary to care for the missing person’s property or next of kin—such as their spouse or parents.
What Is a Conservatee?
If you’re seeking information on a conservatee’s rights, you must first understand what a conservatee is. A conservatee is a missing person whose affairs are managed by a court-appointed conservator.
Who Is a Conservatee in Florida?
The law specifically defines a conservatee as someone who is absent or “an absentee.” Under Florida law, a person is an absentee under the circumstances described below.
The Missing Person Was Serving During Hostilities
The first type of absentee described under the law includes missing people serving in the military, Red Cross, Merchant Marine, or something similar during a period of hostility between the U.S. and another power. They can be considered an absentee if:
- They’re reported or listed as missing;
- Interned in a neutral country;
- Surrounded by military forces (beleaguered or besieged); or
- Captured by the enemy.
They must be missing under one of these circumstances for over a year to be considered absent under the law.
Other Circumstances Where a Person May Be an “Absentee”
Florida law lists additional circumstances under which a person may be an absentee. First, the person must either be a resident of Florida or own property in Florida. Next, the person must have disappeared under specifically listed circumstances. The particular circumstances include:
- The person disappeared under circumstances that indicate they died naturally, accidentally, or at the hands of another; or
- The person disappeared due to mental derangement, amnesia, or another mental condition.
Remember that for any conservatorship proceeding, you’ll need to have sufficient proof that the person disappeared under the specific circumstances listed above.
Who Can Be a Conservator?
Not just anyone can petition the court to be a conservator. Because of the great power that the conservator has, the law limits a conservator to:
- Someone who has an interest in the conservatee’s property, or
- Someone who is dependent on the conservatee.
Thus, a spouse, parent, child, or another close relative might be able to petition the court to act as a missing person’s conservator. A court will consider the missing person’s next of kin for the role of a conservator if they’re able to act.
Does a Conservatee Have Rights?
Now that we’ve explained conservatorship, you may wonder, What rights does a conservatee have? A conservatee has one of the most important rights: the right to terminate the conservatorship. All they need to do is provide an affidavit to the court, and the court will turn their property back over to them.
They also have a right to an accounting from the conservator. This includes detailed information on what the conservator did with their assets while they were missing.
A conservatee can also bring a breach of fiduciary duty case against the conservator. A conservator is a fiduciary. This means that they must act with extreme loyalty and care with respect to the conservatee and their potential heirs. If the conservator uses the conservatee’s property for their own self-interest, for example, they could be liable for breach of fiduciary duty.
When Does a Conservatorship End?
A conservatorship ends under the following circumstances:
- The conservatee files an affidavit with the court;
- The conservatee signed a power of attorney, and that appointed person files an affidavit with the court along with a power of attorney; or
- There’s evidence that the conservatee died.
Remember, a conservatorship is only for someone who is missing. If a conservatee returns, they have the right to their property. If the conservatee dies, then the conservator must transfer all of their assets to their estate.
Contact Our Firm for Conservatee’s Rights Issues
Understanding conservatorship and the rights of a conservatee in Florida can be complicated. Fortunately, Beller Law, PL, is here to help. Our experienced Jacksonville estate attorney can help you navigate the complexities of conservatorship, guardianship, or other estate planning issues. Contact us today.