How an Adult Guardianship, or Conservatorship, Works

guardian_or_conservatorship

Quick summary

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:

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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.

SEE ALSO: Find Assisted Living Near You

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.

SEE ALSO: Find Assisted Living Near You

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.

SEE ALSO: Find Assisted Living Near You

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.


9 days ago, said...

My sister has court appointed guardianship in NY state, she does not trust the lawyer due to mental illness.. She has not told her guardian about a bank account with large sum of money. What happens to that account after my sister dies? Is she obligated to tell guardian this account?


20 days ago, said...

I am a person with cerebal Paulse, I have an estate that my mother& father look after since I also have brain damage. Lately I have been noticing odd things that my mother does not tell me, she has made constant accusations that I was accusing her of stealing my money, and I'm just tired of it so I called a lawyer, and was tested by a neurologist, and she said because of the test results I was capable of taking care of my own finances. I can't get ahold of my lawyer currently, and was hoping I can be directed from here


20 days ago, said...

I want to be guardian for my incapable making decisions nephew.


about 1 month ago, said...

Why is this only applying to "she" or "her"? I know some hurting gents roo


about 1 month ago, said...

I was hit by a car 12 years ago and I admit I couldn't take care of myself or make decisions but I have been doing every day living by myself in the facility I reside in except for they give me my medicine. But if I had to I could take them on my own should I have my own guardianship.


about 1 month ago, said...

My boyfriend Chris has to get a shot because he is autistic and his mother is also but way worse and she is his guardian and tells him when she will be home to take him to get the shot and never shows up to take him and he doesn't have a license to drive and I don't either and we live together and I have seizures/epilepsy and she does not ever get him his shot my parents have to take him she is a horrible mother to him ( PLEASE HELP) info needed


about 1 month ago, said...

My 88 year old father has in the last few months joined in a civil ceremony with a 77 year old lady and they are now cohabitating. Unfortunately we have found out he is not able to take care of his finances and she possibly is influencing him to change his will into her favor. We have discovered that she may be medicating him without his knowledge. We have been advised to try and get a guardianship asap! My concern is she will harm his health before we can get it set up. Any suggestions? Thank you.


about 1 month ago, said...

Need help


about 1 month ago, said...

Who has last word? My daughter has a brain injury and is in a TBI rehab in OK.. The guardian lives here in Wa. Who has final power over a decision regarding my daughter. For instance if the hospital in OK wants to give my daughter surgery, and guardian who lives here in Wa state, who has final say so about whether my daughter has surgery or not? The hospital in OK? Or guardian in Wa state? Thankyou


2 months ago, said...

my husbands brother is a guardian of the state of Arizona. They have placed him in a nursing home there and he now wants my husband to remove him from there to our home in Oklahoma. Can my husband simply take him out of state or not?


2 months ago, said...

My sister is divorcing her husband because he has Bipolar Disorder and refuses to take medication for it. She recently found out that his mother may have guardianship over him, but we can't get a straight answer from them. If his mother does have guardianship, then the marriage is illegal. We live in New Jersey. Can my sister go to the county clerk and find out if her mother-in-law has guardianship over her husband?


2 months ago, said...

We have been married for 50 years,I had to take her to the ER the other night and be fore you knew it they kept her over night. and the next day the Dr. made a choice to put her under protective care.Then because I didn't have guardianship papers drawn up so I could sigh her in the place they got the court involved are now making efforts to have her committed.And all this was done with out letting me know what was happening and just what was going to take place.I have taken care of her for over 50 yr. It seens that some consideration should have been given to me so that I DIDN'T have to almost have a nervous brake down. I have been rushing about trying to get a gaurdianship in place in the last few days.It has pure heck trying to get informatiom and forms to submitt to the court. and just when I thought I was making headway I was told that I had to have a bucket of money to involve lawyers.Talk about depression I was in in hip deep.As I am living on S.S.,at least trying to.Then someone says I'll talk to you for 400.$ per hr.


2 months ago, said...

My husband's parents are his legal guardian.do I as his wife have any rights to make decisions for him


3 months ago, said...

I need help as to hiw to become my mothers guardian


3 months ago, said...

so this is my story. I've been caring for a 67 man that has been diagnosed with dementia , he also is a Veteran that has PTSD and has had two head trauma injuries, he is a alcohol user. I have been caring for him in my home for almost two years... He has attempted suicide a dozen times. I do everything for him, however his family has giving up on him, very little communication from his wife of 46 years.as well as a son and daughter that are adults. This situation is a sad case but I have faith it will work out in the end. his wife has power of attorney over his finances and she is obligated to pay his living arrangements and 3 bills. cable phone and internet as well as a spending allowance and clothing allotment every month. well she has not paid for a thing for almost 9 months. she has managed to sell his tools cars boats and business. So I do get paid from her every month and he also has his dog here so I have that also on top of everything else. I did not know Wayne before he was moved into the trailer park and left to care for himself, my dad who also lives close by noticed him walking around asking for beer to the neighbors houses and going into my parents house unannounced . So I was asked to help with errands and cleaning, I gladly accepted. well two years has gone by and I have learned a lot about caring for this man.so I guess I have a lot of questions regarding what do I do now to insure I will have a income if and when he moves on either to his own home or hospital, we never know what will happen from day to day. I do not qualify for respite time because im not a family member nor am I licensed to get paid from a company. I get paid privately. which has a lot of security questions for me and my retirement .Is there anything I can do to secure me? thanks for reading my story


4 months ago, said...

My sister can not control her money or meds


4 months ago, said...

My sister has dementia and is a habitual drug abuser. She has od'd 5 or 6 times mixing her psych meds with street drugs. She can use her money to pay her bills properly. She doesn't pay her bills, She uses her money for drugs


4 months ago, said...

I live out of state and I travel frequently to California where my father is currently living. He is completely incapacitated. His brothers and sisters have been in charge of his decision making since the 80's, but since they are not well versed in English, they have only been able to obtain the most mediocre care available. After meeting with my aunts and uncles and after paying my father a visit, I was horrified to discover the neglect my dad has endured while living in a care home for the last 15 years. My dad has a history of memory and rage issues and years ago, he was kicked out of several of these homes for being too violent and intolerable. My family kept him where he is out of fear of not being able to find a home that would put up with his wild outbursts, but I've heard and seen a lot to bare. This care home is filthy and it lacks proper security and the appropriate staff needed to care for my father. He has fallen and broke his arm once, he left the home right into the street, he's been hospitalized for severe constipation, the owner hasn't been following up on the status of his replacement wheelchairs, shoes, leg braces, he has been dirty, unattended and god knows what other horrible things he's had to deal with. I failed to mention that I also learned that a strange woman took advantage of him and kidnapped him in broad daylight and NO ONE noticed! This woman was somehow able to transfer his rights to her and she was receiving and cashing his Social Security checks! This went on for about a month. No one was held accountable for these injustices. My relatives only have the most basic knowledge of how to run his health. They wouldn't know where to start even if they wanted to seek justice. I asked my aunt for my dad's S.S. info/medical info so that i can find out as much as I can before it's too late. I asked my aunt if they have ever run a credit report on Dad and she said no. It's baffling to me how long this can and will continue to go on unless I just take over from out of state. I was told my father only has a brother and a sister listed as the "Payees" for his Social Security benefits, so I want to look into getting conservator ship over him. He's in San Diego by the way. Any help would be appreciated. Thanks.