When an individual cannot make important decisions for himself or herself, a judge appoints someone called the conservator or guardian to make decisions. The conservator has the legal backing of the court in all decisions, including finances, medical and personal care.
Appointed by a judge, the conservator handles the estate of the person, the finances and generally their basic affairs and everyday care. Administrative matters such as Medicare, insurance, pensions, medical coverage and the like are all also managed by the conservator, with meticulous record keeping required according to the judge’s orders.
Conservatorship typically lasts as long as the individual lives. The person serving as conservator may change is the case of death, relocation or that he or she can no longer manage the conservator duties and responsibilities. A judge also has the authority to replace the conservator if the conservator is repeatedly making poor decisions or neglecting required duties.
There are advantages and disadvantages to setting up a conservatorship for someone.
A conservator can be a good idea because it allows family members to know that someone is making the decisions, and it gives clear legal authority to deal with third parties. And, it provides a process to have a judge approve major decisions.
The disadvantages of appointing a conservator are that it is costly in that it requires a lawyer, filing of court papers and a court hearing. It is also time-consuming with ongoing paperwork that needs to be done.
For the older adult who feels he or she is still somewhat capable, it can be humiliating for him or her to have someone appointed as the guardian. And, family members can create conflict in choosing a conservator which can make the overall process emotionally difficult.
Many people ask when it is an appropriate time to seek conservatorship. If the individual has become mentally or physically incapable of making important decisions for himself or herself, then it would be wise to have a court-appointed guardian. Additionally, if the individual does not already have legal documents in place, such as a living will or power of attorney, then the conservatorship would benefit in covering decisions about personal and financial matters.
Further, even if the individual has a power of attorney for both health care and finances, he or she might need a conservator to make decisions about his or her personal life, such as living arrangements and who is allowed to visit.
Although not always easy to determine if an individual can make decisions, a judge understands that a conservator is viable for those with advanced Alzheimer’s or other forms of dementia.
Families wishing to set up a conservatorship need to file formal legal papers and participate in a court hearing in front of a judge. The physical and mental condition of the individual requiring conservatorship must be clearly presented. The individual in question does have the opportunity to contest the conservatorship.
It is helpful to find a lawyer who specializes in conservatorships. You can contact the National Academy of Elder Law Attorneys for a referral in your area.