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.
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
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 documents (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.
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 help 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.
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 further court hearing. 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 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.
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.
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.
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.
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 might 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.