As adults, we make multiple decisions daily. Both big and small. What we’ll eat for breakfast, whether we’ll buy that new TV, where we’ll live, which doctor we’ll see, whether we’ll get married. But what if, due to dementia or some other infirmity, you were no longer capable of making those decisions? If you’d planned ahead (as I always recommend) and signed durable powers of attorney for finances and health care, your designee would begin to make those decisions for you. If not, the court will appoint a conservator, or guardian, for you.
It’s estimated that 1.3 million people in the U.S. are under conservatorship, with 85% of them being over age 65.
What is Conservatorship?
Conservatorship, also called guardianship, is court-ordered supervision designed to ensure that a mentally or physically incapacitated person is cared for and protected. A judge appoints someone – it may be a family member or a professional guardian – to manage the person’s financial affairs and/or daily life and health decisions. These arrangements are governed by individual states and conservators are typically assigned by local judges. Only 12 states, including California, require that conservators/guardians be certified.
There are two types of conservatorships: a conservator of the person, and a conservator of the estate.
Conservator of the person (or full guardianship). In this case, the judge transfers all the individual’s rights, including medical decisions, where to live, whom to associate with, whether to vote, whether to get married, etc., to the conservator. If the conservator is a family member, they may draw payments from the person’s estate to cover approved expenses only. Professional conservators can charge the estate for all services rendered in managing the person’s affairs. In addition to deciding where the person will live, the conservator will make arrangements for their daily care, clothing, meals, recreation, socializing, and well-being.
Conservator of the estate. In this case, the judge assigns all the person’s financial decisions to the conservator. The conservator gains control of all the conservatee’s assets and income, pays their bills, and manages their finances. They also have the ability to invest the conservatee’s money on their behalf.
Filing for conservatorship
The court generally prefers to appoint a family member as a conservator when it’s in the best interest of the person. The potential conservatee may actually nominate someone in advance (while they have the mental/physical capacity to do so). If neither of these options is available, a friend may file for the conservatorship, or a public guardian may do so. This is where the elderly may be extremely vulnerable when they haven’t made plans in advance. (Yes, another reminder to get your paperwork in order!)
“Ripe for fraud”
Sadly, while there are many ethical and caring conservators, conservatorship is another area where seniors may be subject to financial or physical abuse, as outlined in this HuffPost article, The System of Court-Appointed Guardians Continues to Fail the Elderly. Included in the article are some recommendations to protect yourself:
- Execute a comprehensive power of attorney (POA) that includes the ability of the person you choose to both manage your money if you become incapacitated and assume the role of your guardian if necessary.
- Execute a comprehensive health care power of attorney that allows your chosen representative to make all health care decisions if you are incapacitated.
- Give these documents to the appropriate parties before it becomes necessary. While you are still healthy, asks banks and other financial institutions to examine and authorize the POA.
- Ask doctors and local hospitals if the medical directives and health care power of attorney are acceptable.
- Update the documents every few years.
- Keep originals in fireproof cabinets and file pdf copies electronically. You can also give copies to your attorney.
The National Association to Stop Guardian Abuse has more information about conservatorships and how to protect your rights.
If you need help gathering or organizing the documents that will protect you or your aging loved one, please contact me.