In recent history, a legal battle played out with substantial media coverage and much public opinion between Britney Spears and her father to end his 13-year conservatorship over her.  Many people had not heard of conservatorship before this very public controversy, and this case brought the subject of adult incapacity and conservatorship to light.  There are approximately 12,000 adults under guardianship or conservatorship in Virginia.[1]  Although banks don’t have a formal legal role in these important relationships, banks play a critical role by working with a conservator to open the appropriate checking and savings accounts to reflect the conservatorship appointment, assisting the conservator with bill-pay capabilities, and providing access to account documentation needed by the conservator to prove they are fulfilling their duties, including, copies of checks written, deposits made, and monthly bank statements.  It is a best practice to understand the roles of conservators and how your bank can assist this unique class of customers to fulfill their meaningful duties.  

What Does it Mean to be Incapacitated?

An adult becomes “incapacitated” when a court determines that person is no longer able to take care of themselves on their own.  “Incapacitated person” is defined in Virginia as an adult found by a court to be incapable of receiving and evaluating information effectively or responding to people, events, or environments to such an extent that the person lacks the capacity to meet the essential requirements for their health, care, safety, or therapeutic needs without assistance or protection; or manage property or financial affairs or provide support for themselves or their legal dependents without assistance or protection.[2]  The court may appoint a guardian, conservator, or both to manage the incapacitated person’s health, wellbeing, and financial affairs.

Proof of Conservatorship & Account Opening

A guardian and conservator are not one in the same.  When a court appoints a guardian for an incapacitated person, the guardian is responsible for that person’s care, health, safety, and wellbeing.  A guardian does not have the authority to manage the finances of an incapacitated person.[3]  A “conservator” is a person appointed by the court who is responsible for managing the estate and financial affairs of an incapacitated person.[4]  A court may choose to appoint a person as guardian and conservator for an incapacitated person, and that person will have general authority to make decisions regarding health and welfare, as well as financial decision-making. 

When a court appoints a conservator, it will issue an Order of Appointment that contains details about the conservatorship, including whether there are any limitations to the conservator’s authority.  After this appointment, the circuit court clerk issues a Certified Letter of Conservatorship, which qualifies the conservator to act on behalf of the incapacitated person.  The bank should request certified copies of these documents at account opening to ensure the person attempting to open the conservatorship account has obtained the legal authority to act on behalf of the incapacitated person.  Other documentation that the bank may ask for at account opening includes surety bond coverage documentation for the conservator, valid government identification of the conservator, and tax identification information for the incapacitated adult. 

The conservatorship account will be opened in the conservator’s name for the benefit of the incapacitated person, because the funds in the account belong to the incapacitated person (e.g. – Connie Conservator, as conservator for Ingrid Incapacitated).  As the conservator has a fiduciary duty to keep the incapacitated person’s assets separate from other funds (including the conservator’s funds), the conservatorship account should be titled as an individual account, not joint or multi-party, with no survivorship.  Subject to the court Order of Appointment, only the conservator has authority to transact business in the conservatorship account because the incapacitated person lacks the legal authority to transact their financial affairs until the incapacity is removed by the court.  The conservator may include the incapacitated person in decision-making as appropriate.    

Conservatorship Duties & Oversight

A conservator stands in a fiduciary relationship to the incapacitated person and is required to exercise reasonable care, diligence and prudence to act in the best interests of the incapacitated person.[5]  The bank is not responsible for ensuring the conservator is adhering to their duties.  Conservators are required to make periodic reports of their actions in relation to the conservatorship funds to a Commissioners of Accounts, who has official oversight over the conservator.  Banks should, however, monitor conservatorship accounts for elder financial abuse, and report suspected abuse to the local Department of Social Services and to the police. 

A solid understanding of the role of a conservator and the particulars associated with proper account setup is beneficial to the bank and its customers, and can position the bank to be a trusted partner to the thousands of Virginia conservators.