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Guardianships & Conservatorships - an Overview

Why they should always be your option of last resort

by Barbara E. Friesner, Age Wise Living

There must be something in the air!

Last week I received 2 phone calls from family members. Both were debating the advantage of Generational Coaching versus “just going to court and getting appointed their aging loved one’s guardian”.

In one of the cases, their Dad has dementia. If they had called even a few months ago, I might have been able to save them a lot of time and tens of thousands of dollars. Unfortunately, it is too late and guardianship is now their only option.

In the other case, there is still plenty of time but the family seemed to think that if they can’t get Mom to let them help, they will “just go to court and get appointed her guardian”.

What the family members just didn’t understand is that a conservatorship or guardianship isn’t a magic wand and should never be considered the place to start or the easy way out.

To help you understand conservatorships/guardianships, I’ve asked Marcie G. Roth, a partner of Singer, Block, Matles & Roth to assist in writing this article. However, nothing in this newsletter should be construed as legal advice. And, as is so often the case, laws and terminology differ from state to state and each state regulates the conservatorships and guardianships, so be sure to check this information for your state.

Q> What is a “conservatorship” or “guardianship”?

A conservatorship and a guardianship is a court-ordered legal relationship in which a person, who is called a guardian or conservator is appointed to manage the financial and personal needs of another. In doing so, the Court may strip the incapacitated person of some or all of his or her right to make financial and personal decisions for himself or herself.

Q> What’s the difference between a conservator and a guardian?

A conservator has a more limited scope than a guardian. In some states the laws creating a conservator predates the laws creating a guardian. Often the powers of the conservator are limited to financial needs while the guardian is given more expansive powers of the personal needs as well. In some states the words may be interchangeable.

Q> What are the advantages to a conservatorship and a guardianship?

A conservatorship or guardianship allows for someone to take control and manage the affairs of an incapacitated person when no other method of delegating those duties is in place. For example, if someone’s dementia has progressed to a point where they can no longer sign legal documents and appoint a power of attorney or if a sudden illness or accident prevents them from controlling their lives – again, with no power of attorney in place.

Q> What are the disadvantages?

A conservatorship or guardianship is very expensive. The person petitioning for a conservatorship or guardianship will have to hire an attorney to prepare and file a petition and represent them in court. In addition, there fees to court appointed attorneys who investigate and evaluate the need for the appointment. If there is a family dispute over the appointment, attorneys fees will increase as the litigation escalates. An additional cost is the commission or payment for the services of the individual appointed. While a family member may waive this fee, an independent person would not.

A conservatorship or guardianship proceeding can be very demeaning for your aging loved one as they will have to be present in court and hear their family and possibly their doctor testify as to their incapacity. To say nothing of the emotional anguish of the family member having to make the declaration.

It’s very intrusive for the entire family. What was up until now a private affair becomes a matter of public record. While files can be sealed, without a request the information filed is accessible by the public as it becomes a public record.

Q> What does a conservator or guardian do?

In most states the conservator is responsible financial decisions. They may have limited access to one bank account or control over the entire portfolio of the incapacitated person. In most states the guardian has more expansive control and will make decisions about personal matters such as medical care, residency, food, clothing, shelter, asset protection, paying bills, and making investments. Certain transactions such as buying or selling real property, borrowing or gifting assets and paying attorneys will require court permission. Every time additional court approval is sought, additional attorneys’ fees must be paid. There will be significant delay in completing these transactions as compared to what can be accomplished by an agent under a Power of Attorney.

Q> If there is a family member that wants to be the conservator, are they automatically appointed?

Usually but not always. If all family members are in agreement, then it would probably be a family member. If there is a lot of conflict among family members, however, then the court could appoint a third party such as an attorney or professional guardian. While the appointed person, whether family or not, is required to complete a training program, an independent person does not know the family, so their decisions might not be the decisions the family would want made. In addition, a court-appointed guardian will not waive his or her commission, adding an additional expense.

You will also have to prove that the person you’re seeking conservatorship over is incompetent to handle his/her own affairs. Just because they’re not cooperating with you or not doing what you think they should do will not be enough.

Q> If I’m appointed conservator, they’ll have to work with me — right?

Just because you’ve been named the conservator, doesn’t mean your aging parent will suddenly begin to cooperate with you. In fact, just the opposite is probably true! If they weren’t happy about having you involved in their affairs before, it is highly unlikely that a court proceeding is going to make them warm up to the idea. It should always be considered your last resort.

That’s why it’s important to start communicating with your elderly parent early and often and persuade them to see an Elder Law attorney to get their legal and financial affairs in order as soon as possible.

But if your parents are among those refusing to get their legal and/or financial houses in order, and you’re concerned and don’t know how to proceed, I urge you not to wait for a crisis to develop. Even if you think that parent is way too stubborn, or that you and your sibs will never be able to work together, please call me toll-free (877) AGE-WISE or email me for a complimentary “get acquainted” Generational Coaching conversation. You don’t have to do this alone.


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Guardianships and Conservatorships - an Overview