The disappearance of a family member or loved one is an emotional nightmare that no one wants to live through. Whether the person in question is presumed dead in a war zone, was suffering from dementia at the time of the disappearance, or simply vanished without any explanation, the not knowing can be excruciating. At the same time, however, there are legal issues that often need to be addressed when someone is missing. Who will take over the individual’s financial and legal affairs, for example? In the State of Florida, you will need to petition for conservatorship if you find yourself in this situation. Because the steps involved in petitioning to become a conservator can be complicated it is best to work closely with an experienced Florida estate planning attorney if you believe a conservatorship is warranted. In the meantime, however, you may wish to familiarize yourself with the basic concepts involved in conservatorship.
What Is a Conservatorship?
A conservatorship is a legal relationship wherein a court appoints someone to manage the estate of another person who qualifies as an “absentee.” Florida Statutes Chapter 747 governs the rights and duties of a conservator. According to the state, a conservator has all the “ rights, powers, and duties of a guardian of the property as established in chapter 744.” In the case of a guardian of the property, a judge may grant a guardian full power over the ward’s (and incapacitated person) estate or may limit the power granted to the guardian; however, some of the powers a guardian of the property, and therefore a conservator, might have include:
- The right to manage and invest the absentee’s assets
- The right to sell the absentee’s property
- The right to collect income in the name of the absentee.
Who Is an Absentee?
(1) Any person serving in or with the Armed Forces of the United States, in or with the Red Cross, in or with the Merchant Marine or otherwise, during any period of time when a state of hostilities exists between the United States and any other power and for 1 year thereafter, who has been reported or listed as missing in action, interned in a neutral country, beleaguered, besieged or captured by the enemy, shall be an “absentee” within the meaning of this law; and,
(2) Any resident of this state, or any person owning property herein, who disappears under circumstances indicating that he or she may have died, either naturally, accidentally or at the hand of another, or may have disappeared as the result of mental derangement, amnesia or other mental cause, shall also be an “absentee” within the meaning of this law.
Who Can Be a Conservator?
The governing statute says that a petition for conservatorship may be filed by “any person who would have an interest in the property or estate of the absentee were such absentee deceased or any person who is dependent on said absentee for his or her maintenance or support.” Usually, this may include a:
- Adult child
How Do You Petition for Conservatorship in Florida?
In order to become a conservator you must first file a petition with the appropriate court. In the petition you must explain the circumstances that call for a conservatorship as well as provide information regarding the absentee’s Last Will and Testament and estate assets. You are also required to notify other family members that you have filed the petition as they may oppose your petition. The court will set the matter for a hearing at which you will need to convince the court that a conservatorship is warranted and that you are the appropriate person to appoint as the conservator.
If you have additional questions about conservatorship or guardianship in the State of Florida please contact the experienced estate planning attorneys at Kulas & Crawford. by calling 772-398-0720 to schedule an appointment. In addition, please download a free copy of our “Solid Estate Plan Checklist.”