Date Published: June 22, 2023
If the person you care for is in good health, you may not be thinking about their possible need for a conservatorship or adult guardianship. But if you are considering this step, you’re not alone.
The unfortunate truth is that many older adults experience periods toward the end of life when they cannot make decisions for themselves — due to Alzheimer’s or other forms of dementia, a stroke, an accident, general cognitive decline, or some other serious medical condition.
If the person has an advanced health care directive, sometimes known as medical guardianship, decisions regarding health care are likely already taken care of. If they have a durable power of attorney for finances, there will be someone to take care of money matters.
But what if your loved one 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 your loved one when they can’t do so themself.
What Is a Conservatorship or Adult Guardianship?
Conservatorship and adult guardianship often refer to the same thing — different states may use one name or the other. To keep things simple, we’ll just use the term conservatorship. If someone can’t make critical decisions for themself, a judge appoints someone — called the “conservator” — to make those decisions for them. Decisions made by the conservator have the legal backing of the court. The conservator might be appointed to decide about their finances, medical and personal care, or both.
Someone appointed to make decisions about the person’s medical care and other aspects of their personal life — for example, where they should live — is called a “conservator (or guardian) of the person.” This can also sometimes be called a “medical guardianship,” especially if the person already resides in a long-term care community. Someone appointed to decide about finances is usually called a “conservator (or guardian) of the estate.” Sometimes, one person serves as the guardian of both the estate and the person.
Not every state uses the same terminology, and definitions can vary by location. A person seeking a conservatorship for a loved one should make sure they understand what these terms mean in the relevant jurisdiction.
The Pros and Cons of a Conservatorship
There are advantages and disadvantages to setting up a conservatorship for someone, and they aren’t right in all situations. The following pros and cons demonstrate how guardianship can be positive or negative to help you see all sides of the process before making a decision.
- Lets family members know that someone with full cognitive abilities is making decisions
- Can help prevent elder financial abuse
- Gives clear legal authority to deal with third parties
- Provides a process to have a judge approve major decisions
- Costly to set up, requiring a lawyer, legal papers, and a court hearing
- Time-consuming, including extensive ongoing paperwork
- Can be emotionally difficult if family members disagree about who should be the conservator
- The senior may be resistant to a guardian or feel hurt by family members’ decision to seek conservatorship
When Is a Conservatorship For an Elderly Family Member a Good Idea?
Conservatorships are not the right thing for all families, but they can be valuable and appropriate under certain circumstances. For a conservatorship to make sense, two things must be true. One, the person must be physically or mentally incapable of making important decisions for themself (note that the legal standards for what makes a personal mentally incapable vary by state). The other circumstance is that they do not already have legal documents (such as a living will and a power of attorney for finances) that cover decisions about personal and financial matters. Below, we explain some situations in which a conservatorship would be appropriate.
- If they have not prepared a power of attorney for finances, a conservator of the estate can help ensure the person’s finances and assets are managed responsibly.
- If they do not have a medical directive or living will, they might need a conservator of the person, or a medical guardian, to make healthcare decisions. Even if the person has a medical directive, they might still need a conservator to decide on matters not covered in the directive.
- In some cases, even those with a power of attorney might need a conservator of the person to make decisions about personal life. For example, someone with cognitive challenges may be unable to determine where the best place for them to live is. A conservator could choose a memory care community, for example.
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 the senior’s physical and mental condition and how this leads to an 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 they can and want to.
As you can see, the process is quite complicated, and for good reason. The strict legal process surrounding adult guardianship is designed to help prevent exploitation and financial abuse, which is especially important for seniors. The process of filing for adult guardianship can be daunting, especially if you’re concurrently handling an elderly loved one’s physical or mental health challenges. To help you navigate the legal process and ensure you don’t miss any steps, you may seek the help of a lawyer, ideally one with conservatorship experience.
To find the right lawyer, you may wish to contact the bar association for the state or 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, or conduct your own online search for probate or conservatorship lawyers in your area.
How Does a Judge Decide That Someone Can’t Make Decisions for Themself?
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 the person can communicate, a judge may want to speak directly to them 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 they understand the court proceedings, whether they want a conservator, and whether they feel they can make their own decisions.
If, after a preliminary investigation, it’s still not clear whether they need a conservator or who that conservator should be, the judge may appoint a separate lawyer to represent the person in the court proceedings. In some cases, expert witnesses may be necessary. Ultimately, the judge might appoint a conservator but limit the conservator’s authority to certain decisions only, with other decisions requiring a further court hearing.
Judges also can replace the guardian with someone else if the conservator repeatedly makes poor decisions or neglects their 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.
Who Should Act As a Conservator and What Are The Duties?
When seeking a “conservator of person,” or guardianship for decision-making purposes, It’s usually best for someone who lives with or close to the senior to act as conservator. Often, this ends up being an adult child or sibling, but it can also be a court-appointed representative, especially when there are concerns about the ethics of the family members. 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 affairs. 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. However, you may want to get advice from an experienced lawyer if you anticipate conflict.
What Responsibilities Does a Conservator Have?
Being a conservator can mean different things in different cases. When it comes to seniors, the conservator will typically have to make decisions about the person’s routine care. The conservator may also have to make significant personal or financial decisions, such as how best to spend the person’s assets or where they’ll live. The conservator also has to handle administrative matters — 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 the person’s 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 one’s 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 they 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. In all cases, it’s important to completely comply with all legal requirements and stay on top of reporting duties. Remember, the processes surrounding conservatorships help protect seniors, and keep the process transparent for all.
Frequently Asked Questions
What is a conservatorship vs. guardianship?
A conservatorship, also referred to as adult guardianship, is when someone is legally given responsibility by a judge to make decisions regarding another person’s finances, health care, and/or daily life. Adult children or siblings of seniors may sometimes become a guardian for their elderly loved one if the person does not have a living will or health care directive in place and they begin to lose cognitive capabilities.
Does a conservator get paid?
Normally, 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 the person lives. It could be ended, however, if they regain the ability to make decisions. A financial conservatorship might be ended if the person 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.