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:

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.


20 days ago, said...

I have a 91 year old father that is getting difficult to care for..Both emotionaly and physicaly...We've never been close and that makes it hard to care for him.I have a sister thast lives in another state.We're not close either


26 days ago, said...

my daughter was attacked in Denver, Co and had to have 3 brain surgeries.. she was left for dead and not found for 5 days.. brain and bled and killed part of her brain.. she has had erratic behavior and can't hold a job down.. lost everything and is living as a homeless person but has a one room place she shares with 5 people to sleep.. this is a college educated former Charles Schwab employee.. she is now a drunk.. teeth gone.. and can't make a life or keep herself well and not sick.. How do i get a guardianship over her so she will not die. Everytime the phone rings we think it is the police.. it has happened several times and she has been in the hospital at least a dozen times.. has bad seizures now and does not know how to medicate herself.. takes too much or not enough. HELP


about 1 month ago, said...

how do I remove a parent off guardianship


2 months ago, said...

I am a caregiver for a mentally challenged adult for the past 12 years his parents are elderly and starting on going dementia. My client is in his right mind and wishes for me to have guardianship. Can he appoint me on his own without a lot of legal hassle? Or is there some other form that will give e rights to his physical care?


2 months ago, said...

I am the medical guardian for my mother. Can I remove myself and request a court appointed guardian or turn her over to the state?


3 months ago, said...

What steps should I take to try to get my mentally disabled sister and her newborn child to live with me because I feel that our mother is unfit to care for them and is not looking out for their best interest. My sister has a case currently opened on her to see if she is able to care for her child.


3 months ago, said...

My son is now 30 with Schizoaffective disorder and he will not take his medications. He has been hospitalized so many times in the last 10 years it is ridiculous. No one will allow me to make any decisions about his care including the need for him to have an injection. The personal care home provider was moving him around to different places apparently because he was not paying the rent or even providing for his care. I was paying him $550 a month plus $50 per week. a week ago I found him in a roach infested garbage filled apartment with the woman of the couple that lived there. The man was in jail for beating her. my son's room was neat other than the roaches. the landlord asked the people next door to let him stay there for a few days until his new ACT team found him somewhere else but it has been a week and now my son does not want to leave even though one of the two women in there accused him of rape which the police do not believe. Thank God. and the man was put in jail for beating the other woman. What rights' do I have? In all my dealings with the GA department of Behavioral Health and different hospitals they refuse to help me get a civil commitment because my son cannot even care for himself and obviously cannot make decisions about where he lives and with whom. He nearly starved himself two years ago losing nearly 100 pounds because of the eating disorder he gets when not medicated. he has also destroyed several apartments while living alone and his paranoia takes over.


4 months ago, said...

Looking to obtain guardianship over my sister who had a stroke. Her husband is her hcp right now and making poor choices and up til the point where he found a hcp I was making medical decisions and now he is trying to leave me out of these decisions. I feel they are not in her best interest and he himself has limitations medically that I feel may get in the way? Please help?


5 months ago, said...

How does one get their name on and/or off this list for conservatorship if they were not informed and then summoned? Can the person summoned be in contempt if they do not show up to the hearing? My mother received a summons during the time she had a stroke and was in the hospital. How can she be removed as she is not interested in this and is battling her own illnesses. Also, what does this mean financially for her if any


5 months ago, said...

Can someone else be conservator if I am married or is my husband the qualified candidate?


5 months ago, said...

What happens if the.conservator dies and the ward has no family?


6 months ago, said...

Both of my parents have been diagnosed with Alzheimer's. One of the siblings filed for guardianship. She does not speak to the other 2 siblings or me. Our dad is currently in the hospital and she has banned our visitation. Is there anyway to stop her.


7 months ago, said...

There is a nephew who is not capable of overseeing and a 3rd cousin of he subject s deceased wife who is seeking guardian/conservatorship wiith evidence of signs of exploitation What do I do as I live out of state and have more knowledge and information than either of the two. The nephew does not work and the subject has been supporting him for many years.


7 months ago, said...

Do I have to have an attorney if we want to switch gaurdiship from one person to another if all parties agree


7 months ago, said...

My mother has a court appointed guardian based on a complete misrepresentation of myself ( her adult daughter). She is competent except for a minor issue with her memory from a small stroke. She & I want to live free of a guardian ( or I become her guardian) more than anything else in this world. Does anyone have any suggestions on how to accomplish this on a budget??


7 months 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?


8 months 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


8 months ago, said...

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


8 months ago, said...

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


8 months 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.