“Guardianship and Conservatorship: What Seniors and Their Families Need to Know”
As we age, making decisions for ourselves may become increasingly challenging. When this occurs, guardianship or conservatorship may become necessary; seniors and their loved ones should understand what these legal arrangements entail in order to protect their rights and interests. In this article we’ll explore the basics of guardianship/conservatorship arrangements as well as provide practical guidance about what seniors and their loved ones need to know.
What is guardianship?
Guardianship is a legal arrangement wherein a court appoints one individual to make personal decisions for another who cannot do so due to physical or mental disability. This person is known as a guardian; while their charge, or “ward”, is known by this term.
Types of guardianship
There are two types of guardianship arrangements: full guardianship and limited guardianship. In both instances, complete control entrusts the guardian to make all decisions regarding health, finances, and living arrangements on behalf of their ward. Limited guardianship grants certain decisions (such as healthcare related) over to them only.
Who can become a guardian?
Often a family member or close friend will serve as guardian; however, in cases when there is no suitable candidate available or willing to act as such a person is appointed by the court as a professional guardian.
How is a guardian appointed?
To become a guardian, one must petition the court. At that hearing, they will assess whether guardianship is required and who should serve as its representative.
Responsibilities and duties of a guardian
A guardian’s duties depend on the type of guardianship arrangement, as well as his/her ward’s needs and preferences. Generally speaking, however, guardians are responsible for making decisions in their ward’s best interest and ensuring all needs are fulfilled.
What is a conservatorship?
Conservatorship is a legal arrangement in which a court appoints someone else to manage the finances and assets of another individual who cannot do it themselves due to physical or mental incapacity, acting in their place as conservator. This person is called a conservator, while their client (known as protected person).
Types of conservatorship
There are two types of conservatorship: full and limited conservatorship. Under full conservatorship, the conservator has full responsibility over all aspects of managing finances for their protected person while limited conservatorship grants only partial control – for instance paying bills.
Who can become a conservator?
Conservatorsship should typically be assigned to an immediate family member or close friend; however, in exceptional cases where one cannot be appointed the court may appoint a professional conservator instead.
How is a conservator appointed?
To become a conservator, one must file a petition with the court, providing evidence of incapacity and need. After considering these factors, if conservatorship is determined necessary by the court and who should serve, hearings will take place to decide who should become one and which of those proposed as conservators would best fit this role. Once appointed as conservators by court order, letters of conservatorship will be issued which grant legal permission to manage finances for those protected by conservatorship.
Responsibilities and duties of a conservator
A conservator’s duties vary based on the type of conservatorship arrangement and needs of their protected person, but generally speaking they are responsible for overseeing his or her finances, paying bills and investments, making decisions in accordance with those best interests, etc.
Differences between guardianship and conservatorship
Though conservatorship and guardianship may appear similar, there are key differences. Guardianship focuses on personal decisions like healthcare and living arrangements, while conservatorship handles financial ones. Furthermore, guardianship typically grants more control to the guardian over his ward’s life than conservatorship.
Pros and cons of guardianship and conservatorship
Guardianship and conservatorship each present both benefits and drawbacks for seniors who can no longer make decisions for themselves, yet can also be expensive, time consuming and emotionally draining processes that compromise independence and autonomy of the ward under their care.
Alternatives to guardianship and conservatorship
There are several alternatives to guardianship and conservatorship that seniors and their families may want to consider. These include:
- Power of attorney: This legal document allows a person to appoint someone else to make decisions on their behalf if they become incapacitated.
- Living trust: This is a legal arrangement where a person transfers their assets to a trust, which a trustee manages. The person can serve as their trustee while they can, and a successor trustee takes over in the event of incapacity.
- Advance directives: These are legal documents allowing a person to specify their wishes for medical treatment and end-of-life care if they cannot make these decisions themselves.
How to prepare for guardianship or conservatorship
If you or a loved one may need guardianship or conservatorship in the future, it is essential to start preparing as soon as possible. This may include:
- Talking to a lawyer who specializes in elder law (Elder Law Lawyers)
- Creating an estate plan that provides for a power of attorney and advance directives
- Identifying potential guardians or conservators and discussing their willingness to serve
- Gathering essential documents, such as medical records and financial statements
How to choose the proper guardian or conservator
Choosing the proper guardian or conservator is a critical decision. Some factors to consider include the following:
- The person’s willingness to serve
- Their ability to make decisions in the best interests of the ward or protected person
- Their relationship with the ward or protected person
- Their financial stability and responsibility
Guardianship and conservatorship can provide essential protections to seniors who cannot make decisions on their own, yet can be complex and emotionally draining processes. Seniors and their families should explore all available options before engaging with an experienced elder law attorney to safeguard their rights and interests.
Can a senior choose their guardian or conservator?
- In most instances, an elderly individual can express their preferences when choosing a guardian or conservator, but ultimately the court makes their appointment decision.
How much does it cost to establish guardianship or conservatorship?
- The cost varies depending on the complexity of the case and the location, but it can range from several hundred to several thousand dollars.
Can a guardian or conservator be removed or replaced?
- If there are concerns about the guardian or conservator’s performance, the court can remove or replace them.
What happens if a senior still needs to have a power of attorney or advance directive in place?
- If a senior becomes incapacitated and does not have a power of attorney or advance directive, their loved ones may need to seek guardianship or conservatorship through the court.
Can a senior contest guardianship or conservatorship?
- Yes, a senior or their loved ones can contest guardianship or conservatorship if they believe that it is not in the senior’s best interests or if there are concerns about the appointed guardian or conservator.