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.

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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.

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  • 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.

SEE ALSO: Find Assisted Living Near You

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.

SEE ALSO: Find Assisted Living Near You

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.

2 days ago, said...

My sister can not control her money or meds My sister can not control her money or meds Hide

2 days 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 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 Hide

13 days 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... Show more 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. Hide

13 days ago, said...

if my sister is appointed guardianship for mom will she then have access to moms money even tho I am POA if my sister is appointed guardianship for mom will she then have access to moms money even tho I am POA Hide

30 days ago, said...

I need to understand the guardianship process better. Can you help me answer this scenario: My nephew was born disabled and mentally impaired. When he turned 18 and graduated from High School he joined an Indian (phony) Tribe, AKA: a cult. It took me years of trying to get him out from under this. At the age of 18 his psychophrenia developed. We do not know if this was just timing or taking tinctures at the tribe. He is seriously impaired and makes bad decisions. In 2012 The tribe was... Show more I need to understand the guardianship process better. Can you help me answer this scenario: My nephew was born disabled and mentally impaired. When he turned 18 and graduated from High School he joined an Indian (phony) Tribe, AKA: a cult. It took me years of trying to get him out from under this. At the age of 18 his psychophrenia developed. We do not know if this was just timing or taking tinctures at the tribe. He is seriously impaired and makes bad decisions. In 2012 The tribe was caught cashing his social security checks. I took over at the behest of the State of NJ Office of temporary assistance and Social Security. I am currently my nephews POA, HC Proxy, and Social Security Payee (for 4 years) but feel that I now need to become his guardian because after 4 years of being out of the tribe, he went back. Since 2012 we have been working well together and now his has a job at Wal-Mart collecting shopping carts. He will loose all of his SS benefits if they find out that he is back at the tribe. I live in Boston, MA and he lives in a community rest home in NJ. Where do I file the application for Guardianship?? Hide

about 1 month ago, said...

My MIL has dementia. It's to the point that she doesn't remember her family most of the time. My husband has one sister (who we do not get along with). My husband and his mother were very close and she helped us financially anyway she could. She was blessed with her finances. His dad, my FIL, is partial to his daughter and leaves his son out most of the time. This is the way it has always been. His mother was my husband's rock and his father his sister's rock. Well now that my MIL's health... Show more My MIL has dementia. It's to the point that she doesn't remember her family most of the time. My husband has one sister (who we do not get along with). My husband and his mother were very close and she helped us financially anyway she could. She was blessed with her finances. His dad, my FIL, is partial to his daughter and leaves his son out most of the time. This is the way it has always been. His mother was my husband's rock and his father his sister's rock. Well now that my MIL's health isn't stable, we believe his sister has talked his dad into allowing her to take over everything. My husband and his sister both have houses that were given to them but not deeded to them ( the houses are or were in my FIL's name) but we live in them. We are worried she has changed a lot of things and my husband doesn't know about them. Is that legal? Is it ok for her to become the conservator without my husband knowing? What are his options? What does he need to do immediately? We believe she is going to claim all of the inheritance which is quite a bit if we don't do something. Hide

about 1 month ago, said...

I my father daughter had POA and one of my sisters got very jealous bitter she reported me to Adult protective services so now Harris count took over can I still fight this. I my father daughter had POA and one of my sisters got very jealous bitter she reported me to Adult protective services so now Harris count took over can I still fight this. Hide

about 1 month ago, said...

My Mom was in a car accident two years ago she has had 3 surgeries and may half two more. She has also been diagnosed with a brain injury. I have been her replacement services and attendant car for over a year. Any suggestions regarding the best direction; conservatorship, power of attorney or trustee over the state? My Mom was in a car accident two years ago she has had 3 surgeries and may half two more. She has also been diagnosed with a brain injury. I have been her replacement services and attendant car for over a year. Any suggestions regarding the best direction; conservatorship, power of attorney or trustee over the state? Hide

about 1 month ago, said...

How do I go about being a guardian for someone that I met that wants me to be their guardian How do I go about being a guardian for someone that I met that wants me to be their guardian Hide

about 1 month ago, said...

how does a young woman(24) with bi-polar disorder, who gave her guardianship over to her mother when applying for SS Disability, get restored to making her own decisions? Her attorney, at the time of the disability hearing advised her to do this, as it would improve her chances of receiving SS Disabililty how does a young woman(24) with bi-polar disorder, who gave her guardianship over to her mother when applying for SS Disability, get restored to making her own decisions? Her attorney, at the time of the disability hearing advised her to do this, as it would improve her chances of receiving SS Disabililty Hide

2 months ago, said...

Have elderly sister with dementia. Sister in law presently taking care of her. Now she is wanting to get guardianship of her. My sister presently gets Social Security and retirement checks. Understand she also has life insurances over $10,000 with my name as beneficiary. Will obtaining guardianship of my sister change the life insurances beneficiary she presently has? I understand she needs guardianship of her medical health needs, but of her assets/property too? My sister in law claims she... Show more Have elderly sister with dementia. Sister in law presently taking care of her. Now she is wanting to get guardianship of her. My sister presently gets Social Security and retirement checks. Understand she also has life insurances over $10,000 with my name as beneficiary. Will obtaining guardianship of my sister change the life insurances beneficiary she presently has? I understand she needs guardianship of her medical health needs, but of her assets/property too? My sister in law claims she can do both, therefore, even be able to change the beneficiary's name of my sister's life insurance. She is asking for my confirmation and to go along with it. It doesn't sound right. Hide

2 months ago, said...

My girlfriend of three years had a stroke and her oldest son is her conservator. But the rest of the family is also in on this. They gave her an ultimatum of them or me. She can walk she can talk she decides what she wants to eat wear. She doesn't know anything about where she's gonna live or what's happening to her and they don't include me or her in anything SD he does need some help to some degree and may always need help but she is very capable of making decisions. When does this... Show more My girlfriend of three years had a stroke and her oldest son is her conservator. But the rest of the family is also in on this. They gave her an ultimatum of them or me. She can walk she can talk she decides what she wants to eat wear. She doesn't know anything about where she's gonna live or what's happening to her and they don't include me or her in anything SD he does need some help to some degree and may always need help but she is very capable of making decisions. When does this conservatory stop so she knows we Hays going on and can decide where she wants to live? As well as handle her own finances? Hide

2 months ago, said...

Hey there everyone. My question is this...my uncle (my moms brother) is her power of attorney as well as the trustee over her estate. He is doing things that my mom as well as my sister and myself think are not appropriate for him to be doing. He's opened a savings account in her name and takes money from her retirement and ssi and puts it into this savings account but wont let anyone know what its for or how much is in it. My sister pays her bills each month and my uncle won't let her... Show more Hey there everyone. My question is this...my uncle (my moms brother) is her power of attorney as well as the trustee over her estate. He is doing things that my mom as well as my sister and myself think are not appropriate for him to be doing. He's opened a savings account in her name and takes money from her retirement and ssi and puts it into this savings account but wont let anyone know what its for or how much is in it. My sister pays her bills each month and my uncle won't let her know either. What my mom wants to do is revoke him and put my sister as power of attorney. But he's also trustee and we don't know what to do about that. It's been suggested that my sister become my moms guardian and my mom is ok with that. We need some suggestions. Thanks Hide

4 months ago, said...

my brother and his wife have had guardianship of our grandmother for years , is it normal that they put grandma's house and property in their name , and then claim that no one can see her or go on the property . because that is what they have done , then on the 9 of dec 2015 she ended up in the hospital from dehydration and being skin and bones and will be released back to them on the 23 of dec 2015. our aunt thinks she can stop this without going to court . Can she do this because our aunt... Show more my brother and his wife have had guardianship of our grandmother for years , is it normal that they put grandma's house and property in their name , and then claim that no one can see her or go on the property . because that is what they have done , then on the 9 of dec 2015 she ended up in the hospital from dehydration and being skin and bones and will be released back to them on the 23 of dec 2015. our aunt thinks she can stop this without going to court . Can she do this because our aunt does not want to get her nephew and his wife mad at her . Hide

5 months ago, said...

Need help in getting a emergency adult guardianshilp over a 22 years old female that is mental disabled.. what are the steps , please help. Need help in getting a emergency adult guardianshilp over a 22 years old female that is mental disabled.. what are the steps , please help. Hide

6 months ago, said...

My brother is terminally ill. He is unable to manage health care providers ; such as terminating and selecting new providers (nurses aids). What do I need to manage this kind of affairs for him? My brother is terminally ill. He is unable to manage health care providers ; such as terminating and selecting new providers (nurses aids). What do I need to manage this kind of affairs for him? Hide

6 months ago, said...

my husband and I are looking into guardianship with his mother . she just lost her husband a year ago and has moved in with the only daughter 2x since and is there now . she takes from her mother and pays her bills . she is always using her moms money and the mom lets her because she wont stand up to her . she doesn't make any of her medical decisions really the daughter does and is her power of attorney medical , but not financial as far as I know . the daughter has pretty much stolen 2x... Show more my husband and I are looking into guardianship with his mother . she just lost her husband a year ago and has moved in with the only daughter 2x since and is there now . she takes from her mother and pays her bills . she is always using her moms money and the mom lets her because she wont stand up to her . she doesn't make any of her medical decisions really the daughter does and is her power of attorney medical , but not financial as far as I know . the daughter has pretty much stolen 2x from what I know and I kick myself for not reporting it . I just want my mother in law to be treated right and have what she needs as well . another question I had was on my side with my mother she is showing signs of dementia and I was wondering if shes married can me or my sister take guardianship or not with her being married ? Hide