As your parents age, many concerns and needs will arise. One of them being whether or not a conservatorship is appropriate. A conservatorship, also referred to as adult guardianship, is the process of having someone make the necessary medical and financial decisions for your loved one. There are many different things that go into qualifying the need for a conservatorship and establishing an appropriate conservator. Not everyone will need a conservatorship, but for someone who does not have a good Advance Health Care Directive and Power of Attorney in place, it can prove to be very helpful.
An Advance Health Care Directive is a document which lays out the medical wishes of the elder in case he or she becomes incapable of making those decisions. The Power of Attorney is document assigning a person to handle all financial decisions for the elder. There are two different types of conservatorships which can fill in the missing pieces - conservator of the person, and conservator of the estate.
The conservator of the person handles the medical and personal decisions, while the conservator of the estate handles the finances. It is ideal for the conservator of the person to be a relative, and the conservator of the estate should have experience of handled finances, especially if the estate in question is immense or complex. In some cases both aspects may be handled by one person.
There are two things that need to occur for a conservatorship to be considered. First, the elder in question must be physically or mentally incapable of making major decisions. Second, they must not have adequate legal documents stating their preferred personal and financial decisions. Here are some examples:
They do not have a Power of Attorney for their finances.
They do not have a medical directive or a living will.
Even if they do have a medical directive, there may be particular health matters which need to be decided upon and were not mentioned in the directive.
Even if they have a Power of Attorney for both their medical and financial decisions, they may still need help with personal decisions, such as where to live, etc.
In order to start the process for establishing conservatorship, legal documents must be filed which clearly state the physical and mental condition of the elder in question and why they are incapable of making decisions on their own. Family members and the elder in question must be given time to file their own papers stating whether they support or contest the conservatorship.
Many times relatives involved disagree on who is the appropriate person to carry out the conservatorship. It is advisable to discuss it together, including the elder in question, and come to an agreement before starting the process. This will save much time and money. Also, whoever the agreed upon conservator is should be aware that it is a very time-consuming and even stressful responsibility. The conservator may handle everyday care, how to spend assets on long-term care, deal with Medicare, doctors, insurance, and all other financial, medical, and personal decisions for the elder in need.
In some cases, it can be difficult to determine whether or not there is a diminished capacity of the elder to make decisions. For some, they experience physical or mental limitations, but are not completely incapable of making decisions for themselves. When this happens, a judge may either appoint a court counsellor to talk with the elder, or may speak with them himself.
The judge will weigh all the options, read reports from doctors and family members, ask the elder if they understand the court proceedings, whether or not they even want a conservator, and whether they feel capable of making decisions. After this, the judge may appoint a lawyer to represent the elder during the court proceedings. Otherwise, the judge may appoint a conservator but limit their authority. If this happens, further court hearings may be required to receive the judge's approval on certain decisions.
If you feel that your loved one is loosing their capacity to make decisions, do your homework and discuss options and ideas with other involved relatives to reach a uniform agreement. This will help you save precious time and money before you start the legal process to establish a conservator for your loved one. To find an experienced attorney to help you in these matters, get in touch with the National Academy of Elder Law Attorneys (NAELA) for a referral to one in your area.
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