Written by Anya Van Veen • September 23rd, 2016
In practice, we routinely deal with probates (concerning a decedent’s assets) and guardianships (concerning a ward unable to care for his person and/or property). A conservatorship is a lesser-known proceeding available to deal with the property of an absentee, or to care for or address judgments concerning an absentee’s family. An absentee is defined by Florida statute in two ways:
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,
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.
Any person who would have an interest in the property or estate of an absentee if such absentee were deceased, or any person who is dependent on the absentee for maintenance and support, has standing to petition the court for appointment of a conservator. The court has jurisdiction to appoint a conservator of the estate of a Florida absentee upon a showing that:
- The absentee has an interest in any form of property in this state; or
- The absentee is a legal resident of this state; or
- The spouse or next of kin of the absentee is a legal resident of this state; and
- The absentee has not provided an adequate power of attorney authorizing another to act in his or her behalf with regard to such property or interest or the term of any such power of attorney has expired; and
- A necessity exists for providing care for the property or estate of the absentee or care for or judgments concerning the absentee’s spouse and children or, if he or she has no spouse and children, the absentee’s mother or father.
The petition for a Florida conservatorship must include, among other statements:
- The exact circumstance which cause the person missing to be an absentee under s. 747.01 including the date he or she was first known to be missing, interned, beleaguered, etc.;
- The necessity for establishing a conservatorship;
- Whether or not the person alleged to be an absentee has a will and the whereabouts of said will; and
- A statement of all property constituting an asset of the alleged absentee’s estate or in which he or she has any interest and the approximate value of same.
After notice to all interested persons and an evidentiary hearing, if the court is satisfied that the personal alleged to be an absentee is an absentee as defined in s. 747.01, Florida Statutes, and that a conservatorship must be established, the court is required to appoint a conservator to take charge of the absentee’s estate and property under the supervision, and subject to the further orders, of the court.
In the appointment of a conservator, the court shall give due consideration to the appointment of one of the next of kin of the absentee if such next of kin is a fit and proper person and is qualified to act.
A conservatorship terminates if the absentee returns and signs a petition to terminate the conservatorship, or on petition of an attorney in fact acting under an adequate power of attorney granted by the absentee. Likewise, if at any time subsequent to the appointment of a conservator it shall appear that the absentee has died and an executor or administrator has been appointed for her or his estate, the court shall direct the termination of the conservatorship and the transfer of all property of the deceased absentee held thereunder to such executor or administrator.
Anya Van Veen is a Florida probate, guardianship, and conservatorship attorney. She can be reach at (561) 842-4868.