How an Adult Guardianship, or Conservatorship, Works

guardian_or_conservatorship

If the person in your care is in good health, you may not be thinking about her possible need for a conservatorship, or adult guardianship. But if you're considering this step, you're not alone. The unfortunate truth is that many older adults have long periods toward the end of life when they're not able to make decisions for themselves -- due to Alzheimer's or other forms of dementia, a stroke, an accident, or some other serious medical condition. If the person has an advance health care directive , the decision-making about her medical care, if she becomes incapacitated, may already be provided for. If she has a durable power of attorney for finances , there will be someone to take care of money matters.

But what if she has only one of these documents? Or neither? Or there are important decisions not covered in those documents? That's where a conservatorship, or adult guardianship, might come in. It's not simple to arrange, usually requires a lawyer, and needs a judge's approval. But it might help solve the huge problem of who makes major decisions that involve her when she can't do so herself and there aren't enough other written directions.

What is a conservatorship, or adult guardianship?

Conservatorship and adult guardianship are essentially the same thing -- different states use one name or the other. To keep things simple, we'll just use the term conservatorship . If someone can't make important decisions for herself, a judge appoints someone -- called the "conservator" -- to make those decisions for her. Decisions made by the conservator have the legal backing of the court. The conservator might be appointed to decide about her finances, medical and personal care, or both.

Someone appointed to make decisions about her medical care and other aspects of her personal life -- for example, where she should live -- is called a "conservator (or guardian) of the person." Someone appointed to decide about finances is usually called a "conservator (or guardian) of the estate." If she needs both, a court may appoint the same person to do both jobs.

What are the pros and cons of a conservatorship?

There are advantages and disadvantages to setting up a conservators hip for someone. They are, in a nutshell, as follows:

Advantages

  • Lets family members know that someone is making decisions
  • Gives clear legal authority to deal with third parties
  • Provides a process to have a judge approve major decisions

Disadvantages

  • Costly to set up, requiring a lawyer, legal papers, and a court hearing
  • Time-consuming, including extensive ongoing paperwork
  • Can be humiliating for an older adult who is still somewhat capable
  • Can be emotionally difficult if family members disagree about who should be conservator

When would a conservatorship be a good idea for a family member?

Two things must combine to make a conservatorship appropriate. One, the person must be physically or mentally incapable of making important decisions for herself. The other circumstance is that she doesn't already have legal documen ts (such as a living will and a power of attorney for finances) that cover decisions about her personal and financial matters.

  • If she hasn't prepared a power of attorney for finances, she might need a conservator of the estate.
  • If she doesn't have a medical directive or living will, she might need a conservator of the person to make healthcare decisions.
  • Even if she has a medical directive, she might still need a conservator of the person to decide health matters that aren't covered in the medical directive (if the medical directive doesn't already name an agent to make those decisions).
  • Even if she has a power of attorney for both health care and finances, she might need a conservator of the person to make decisions about her personal life -- where she's to live, for example, or who's allowed to spend time with her.

How do I set up a conservatorship for a family member?

A conservatorship requires the filing of formal legal papers, followed by a court hearing in front of a judge. Legal papers have to clearly spell out her physical or mental condition and her inability to make decisions. Family members might have to be notified and given a chance to file their own legal papers, either supporting or contesting the proposed conservatorship or the proposed conservator. And the person in question, too, must be given a chance to contest the conservatorship if she can and wants to. For all of this, you'll need the he lp of a lawyer with conservatorship experience.

To find the right lawyer, contact the bar association for the county where you or the person in your care live, and ask for its lawyer referral service. When you contact the referral service, ask for the names of local lawyers who specialize in conservatorships or elder law. You can also contact the National Academy of Elder Law Attorneys for a referral to its members in your area.

How does a judge decide that someone can't make decisions for herself?

It's not always easy to determine whether someone is capable of making decisions. In some cases, it's obvious that a conservator is necessary -- for example, for a person who's unconscious or semiconscious, or who has advanced Alzheimer's or other forms of dementia. But many other people have physical or mental limitations that diminish but don't totally erase their decision-making capacity. In that case, a judge has to weigh opinions and options.

  • If she can communicate, a judge may want to speak directly to her, or have a special court officer do so, in addition to reading reports from doctors and family members. The judge or court investigator will ask whether she understands the court proceedings, whether she wants a conservator, and whether she feels she can make her own decisions.
  • If, after a preliminary investigation, it's still not clear whether she needs a conservator, or who that conservator should be, the judge may appoint a separate lawyer to represent her in the court proceedings.
  • The judge might appoint a conservator but limit the conservator's authority to certain decisions only, with other decisions requiring a fu rther court hearing.

Who should act as conservator--and what are the duties?

For a conservator of the person, someone -- usually an adult child or sibling -- who lives close to the person in question is usually best. For a conservator of the estate, it should be someone who is familiar with handling finances, particularly if those finances are substantial or complicated. In either case, it has to be someone who can give the time necessary to manage her af fairs. If no family member lives near her, or if no family member has enough financial savvy, a judge might appoint a professional conservator -- either a public officer or a private, paid conservator.

You might feel you're the best person to be the conservator, but another family member might disagree. Before you file any court papers, discuss with your family who should be the conservator. Hashing out this question ahead of time can do a lot to reduce stress and make for a smoother and less expensive legal process.

The conservator will have to decide about her everyday care. But the conservator may also have to make major personal or financial decisions, such as how best to spend her assets on long-term care, or where she'll live. The conservator also has to handle administrative matters for her -- for example, dealing with doctors, Medicare, insurance, or a long-term care agency or facility. This includes applying for whatever benefits, pensions, medical coverage, and the like she might be eligible for.

The conservator also has to keep careful records of decisions and expenditures made on her behalf. This information has to be regularly reported to the court; how often and in how much detail depends on the judge's orders in her particular case.

A judge might also require the conservator to come back to court regularly to report on what's happened since the last court appearance. Or he might require the conservator to come back into court before making certain major decisions, such as selling her home, or moving her into a nursing facility or out of the state.

Does a conservator get paid?

Nor mally, you or another family member who acts as your family member's conservator would not be paid for performing those duties, although expenses are reimbursed out of her funds. A professional conservator would be paid, and it's up to the judge to decide how much.

In some circumstances, the job of being conservator is very time-consuming and seriously restricts other work the conservator could do. In that case, a special request to the judge can be made for payment to a family member who's acting as conservator.

What happens if the conservator mishandles my family member's affairs?

A conservator is not financially responsible for poor judgment in handling financial matters. The conservator would only be held personally responsible if it were shown to a judge that the conservator was stealing or otherwise committing fraud, or had recklessly risked the person's assets.

If you or other family members think the conservator is consistently making bad decisions for your family member -- either financially or in terms of her personal care -- you can file court papers that raise these issues and have a judge decide whether the conservator should be replaced.

When does a conservatorship end?

The conservatorship will probably last as long as she lives. It could be ended, however, if she regains the ability to make decisions. A financial conservatorship mig ht be ended if she no longer has any assets to deal with.

Although the conservatorship itself will probably continue as long as your family member lives, the person serving as conservator might change. This could happen if the conservator dies, moves away, or otherwise can no longer manage the conservator's duties. A judge could also replace the conservator with someone else if the conservator repeatedly makes poor decisions or neglects his duties. A family member or any other interested person could request a change by filing papers with the court detailing the reasons the conservator should be replaced.


Joseph L. Matthews

Joseph Matthews is an attorney and the author of numerous books, including Social Security, Medicare, and Government Pensions, Long-Term Care: How to Plan and Pay for It; How to Win Your Personal Injury Claim; and The Lawyer Who Blew up His Desk. See full bio


about 1 month ago, said...

How do I go about getting an power Attorney over my mother


about 1 month ago, said...

Can the daughter as legal guardian deny me to see my loved one of 32 years in assisted living


2 months ago, said...

My Mother In Law was declared incompetent. Rhe jydge assigned a guardian. She has 9 children. All alive. 1 out of state. The son she lives wirh d


2 months ago, said...

My exwife was living in TX and the judge granted her 1200. in spousal per month until the state considered her sane. this has been going on for 6 years, since then she has moved to Nevada were her brother has POA is there anything I can do I was planning on retiring but I don't see that happening if I can't get rid of this expense.


3 months ago, said...

My dad is currently living with my Aunt in Kentucky. She has guardianship over him and has since blocked me, my brother, my dads grandchildren, and multiple other family members off from talking to him just because she doesn't like us. Nobody has done anything to give her any reason to keep him from us. It's been almost 5 months since I have talked to my dad and his health is declining rapidly. I miss him a lot. Even though my aunt has guardianship, do I have any rights as his child to at least talk to him?


4 months ago, said...

How does the public guardian not give me money for my father needs... He is in my care but the guardian has custody of him and is his payee...


4 months ago, said...

my friend is guardian to mom in Texas but cannot find work in Texas. If they find work in another state can they move and remain guardian of patent in Texas ?


5 months ago, said...

I live in Colorado getting divorce with some ASSETS that dishonest attorneys and the judge coming after. The jidge granted guardian for me without any evidences due process hearing I should have been told Co.law.its my ASSETS their after.What can I do


5 months ago, said...

If my mother lives in Missouri and I live in Kentucky how would I go about getting conservatorship? Do I have to file everything in MO? I have a niece in MO that she is currently living with.


5 months ago, said...

I have a sibling that is schizophrenic. She is 36 at this time and not doing well at all. She is in a behavioral facility center at the monent. I live in another state. My father and other sister live where she is but they do not want to have anything to do with here. I just found out that the facility has said they are going to be trying to get conservatorship of her. I don't want to let that happen to her. How can I get conservatorship of her myself? What do I need to do?


5 months ago, said...

is guardianship private and is the paperwork traceable in court records?


5 months ago, said...

How to revoke guardianship or conservator ship...


6 months ago, said...

I have a 24-year-old daughter who has been diagnosed with bi-polar disorder and borderline personality disorder. She realizes she cannot make competent decisions when it comes to her life and the life of her son, so she asked me to become her guardian so she doesn't make stupid decisions like knowing a guy for two weeks and moving both her and her son into his five-adult, six children household. I have no problem doing this, as I have taken care of her on and off all her adult life. What I'm wondering is if that guardianship would apply to her son also?


6 months ago, said...

My husband had a guardianship established in Florida for his sister who is mentally retarded (IQ 35-40; mentality of 6-8 yr old). We brought her to Georgia 4 years ago because it was difficult to manage the poor care that she was receiving in Florida. There are no other living relatives to look after her. Evidently, Georgia does not allow for the guardianship to transfer from Florida. She has no assets - just SS disability and a small military annuity from her deceased father's military pension. We saw a family practice attorney here in GA. He was unable to assist us after months of holding a deposit. He could not contact make contact in Florida with the old attorney or the courts. He indicated that since she has no assets there is no reason to apply for a guardianship. Is there any benefit to applying for a GA guardianship to be established or not? Thank you.


6 months ago, said...

@ Debbie Creecx - If she does have guardianship, she would've legally had to notify you. I have to send my siblings copies of the annual filings every year. They were also given a timeframe during the emergency guardianship to dispute it. If you haven't received any sort of notification, you can contact the County Clerk's office in the county your mother lives in. She would've had to file through them, and they should be able to tell you if your mother has a legally assigned guardian, and if so, who it is. My guess is that she did not actually obtain guardianship, and simply thinks being the executor means she has the right to make other decisions while your mother is alive.


6 months ago, said...

@ gooden - I wouldn't recommend it. There are a lot of things you CAN do without an attorney - file annual reportings, file for financial benefits the ward may qualify for, etc. But the guardianship itself, especially if the person you're taking responsibility of is not willing, is a very complicated process. I had to get an emergency guardianship of my elderly father, and our lawyer was very helpful in the entire process. If a guardianship is needed, you may be able to use the Ward's funds to pay for the lawyer. I would go for a consultation, which a lot of family law firms won't charge for.


6 months ago, said...

can I get guardianship without a lawyer


7 months ago, said...

I have guardianship of my mother and she wants to go stay a couple months out of state with a relative. For medical reasons only can I give that person permission do you have her treated if she needs to go to the doctor but I have primary still to make decisions


7 months ago, said...

I've had guardianship of my 43 yr old sister for 7 months. She would Luke for me to give up the guardianship right now, but it is not due to expire until Oct. 2017. Actually, I would like to do it Now also. Is it possible and, if so, how?


7 months ago, said...

I've been dealing with mishandling the guardian mishandling and need to be adressed,it fall on my and get stress have go through my full guardian and many things never get handle well.Im 30 and the full guardian was handed over to the partner ,that i know he cares less about me and ingores my needs and even living in program called home share ,ive shown im capible of livng on my own,when my papers say other wise.i want to adress this,but im misunderstood and lied about.i want to have this dealt in court,but when i tried bring this up no one come to inform me im left out tolled one thing and then the other,thats why i need my guardianship to be dealt with im trying my best show how hard i am taking care myself and need court to help with the money for lawyer.Its big deal for me its take it's toll on me and im the one trap in this mess and still left out my own life trying to get the respect i need live normal life.i feel there be alot disgrements with the full guardianship parent who isnt raisied me nore,here working with me have alittle stress off my back,alot my things left behind,just so people see me and not the lies and words dont add up.its driving me up the wall trying to fix it all on my own and half the informations goes to those who rather be a block in my way.i've dealt with this since my adtoped mother passed from cancer when was 26 years old and got away enough where im proving meself to be able live on my own.only reason this keep coming up and those who rather ingore this issue arent effected like me when it road block my path to my future.i need court know i got the ablilities to,please help me to find way make this issue more easy. feel my pain, Hope