Quick summary
If your parent is in good health, you may not be thinking about her 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 elders have long periods toward the end of life when they're not able to make decisions for themselves -- due to Alzheimer's, dementia, a stroke, an accident, or some other serious medical condition. If your parent 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 about your parent when she can't do so herself and there aren't enough other written directions.
Back to TopWhat 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 your parent 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 your parent's finances, medical and personal care, or both.
Someone appointed to make decisions about your parent's 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 your parent needs both, a court may appoint the same person to do both jobs.
Back to TopWhat are the pros and cons of a conservatorship?
There are advantages and disadvantages to setting up a conservatorship for your parent. 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 a parent 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 my parent?
Two things must combine to make a conservatorship appropriate for your parent. One, your parent must be physically or mentally incapable of making important decisions for herself. The other circumstance is that your parent 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 your parent 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 my parent?
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 your parent's 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 your parent, 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 your parent 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.
Back to TopHow does a judge decide that my parent 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 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 your parent 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 your parent 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 your parent needs a conservator, or who that conservator should be, the judge may appoint a separate lawyer to represent your parent 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.
Who should act as my parent's conservator?
For a conservator of the person, someone -- usually an adult child or sibling -- who lives close to your parent 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 your parent's affairs. If no family member lives near your parent, 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 your parent's 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.
Back to TopWhat are the conservator's duties?
The conservator will have to decide about your parent's everyday care. But the conservator may also have to make major personal or financial decisions, such as how best to spend your parent's assets on long-term care, or where she will live. The conservator also has to handle administrative matters for your parent -- 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 your parent might be eligible for.
The conservator also has to keep careful records of decisions and expenditures made on your parent'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 your parent's 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 your parent's conservator to come back into court before making certain major decisions, such as selling your parent's home, or moving her into a nursing facility or out of the state.
Back to TopDoes a conservator get paid?
Normally, you or another family member who acts as your parent's conservator would not be paid for performing those duties, although expenses are reimbursed out of your parent's 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.
Back to TopWhat happens if the conservator mishandles my parent's affairs?
A conservator is not financially responsible for poor judgment in handling your parent's 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 your parent's assets.
If you or other family members think the conservator is consistently making bad decisions for your parent -- 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.
Back to TopWhen does a conservatorship end?
Your parent's conservatorship would probably last as long as she lives. It could be ended, however, if she regained the ability to make decisions. A financial conservatorship might be ended if your parent no longer has any assets to deal with.
Although the conservatorship itself will probably continue as long as your parent 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.
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