Effect of Appointment of Conservator on Joint Tenancy Title

• Publication year: 1983
• Pages: 1237

12 Colo.Law. 1237 Colorado Lawyer 1983.

1983, August, Pg. 1237. Effect of Appointment of Conservator on Joint Tenancy Title

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1237

Vol. 12, No. 8, Pg. 1237

Effect of Appointment of Conservator on Joint Tenancy Title

by Donald M. Lesher

A proposed title standard has been submitted to the Title Standards Committee of the Real Estate Section of the Colorado Bar. It reads as follows:

Q. Upon the appointment of a conservator for a joint tenant, is the joint tenancy title to the real estate owned by the protected person severed?

A. Yes.

In the past, a conservator received no title to property upon his appointment; he functioned solely as custodian or manager of title of the property, real or personal, owned by the protected person. Presently, however, § 420 specifically provides that title vests in the conservator as trustee:

The appointment of a conservator vests in him title as trustee to all property of the protected person presently held or thereafter acquired. . . . The appointment of a conservator is not a transfer or alienation within the meaning of general provisions of any federal or state statute or regulation, insurance policy, pension plan, contract, will, or trust instrument, imposing restrictions upon or penalties for transfer or alienation by the protected person of his rights or interest, but this section does not restrict the ability of persons to make specific provisions by contract or dispositive instrument relating to the conservator.(fn1)

The provision which stipulates that the appointment of a conservator does not constitute a transfer or alienation of the protected person's interests apparently is included only to prohibit the imposition of restrictions upon or penalties for transfer or alienation by the protected person of his rights or interest

When one has a vested interest, one has absolute ownership of that interest and the right to alienate the same.(fn2) Accordingly, since under § 420 a conservator is vested with title to the protected person's property, that title is absolute in the conservator. Thus, the following question arises: Is a joint tenancy between the protected person and other co-tenants severed by the appointment of a conservator, thereby creating a tenancy-in-common, or does the joint tenancy continue throughout the conservatory term?

Severance of Joint Tenancy

It is well established that "[a] joint tenancy is severed by destroying one of...