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Conservatorships and Adult Guardianships

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Conservators have court-ordered power and responsibility to oversee the affairs of those that are no longer able to make their own decisions concerning finances or healthcare. If the debilitated individual planned in advance and signed durable powers of attorney concerning finances and healthcare, that individual is not going to require a conservator since the person named in those documents can take control. Nevertheless, when no planning has taken place — a general situation — then members of their family must petition a court to name a conservator or guardian. Read more to learn about Conservatorships and Adult Guardianships.

Conservatorships vs. Adult Guardianships

In many states, conservatorships, also called adult guardianships, share similar meanings. This post will use “conservatorship” for simplicity. When a court appoints someone to handle financial affairs, they become a “conservator of the estate.” Another handles medical and personal decisions as a “conservator of the person.” A person in need may require one or both roles, overseen by a court. Conservatorships are often established for those in comas, with Alzheimer’s, or facing serious health issues.

Pros and Cons of a Conservatorship

Conservatorships are lengthy and costly; they usually require court hearings and the continual assistance of a lawyer. The documents can also be a hassle, since the conservator is required to keep detailed records and file court papers regularly.

All court proceedings and documentation are a matter of public record, which can be an unwanted encroachment for those that value their independence and privacy.

Conservators are dependent on court supervision, which offers a powerful safeguard for a debilitated adult’s property. To hinder conservators from mishandling the property or otherwise exploiting the individual they are assisting, a lot of courts require conservators to present regular reports describing their actions. A lot of courts also require the conservator to seek consent prior to making significant decisions, like selling a property (for financial conservators) or ending life-support (for conservators managing healthcare decisions).

Furthermore, a financial conservator is obligated to regularly secure a bond, an insurance policy protecting the conservatee’s estate. The bond premiums, unnecessary when the conservator is competent and reliable, are covered by the conservatee’s assets.

From time to time, nevertheless, a conservator is going to mishandle a conservatee’s assets or make poor decisions concerning the conservatee’s healthcare. Even though each state has regulations and procedures designed to hinder such abuses, few have the resources to keep tabs on conservators and follow up when they spot problems. A lot of cases of ignorance or mistreatment go overlooked.

Avoiding a Conservatorship

The leading way for avoiding a conservatorship is for an elderly individual to prepare durable powers of attorney prior to a health emergency happening. In this manner, someone pre-selected is going to get involved for making medical and financial decisions when required.

The Court Process

Anyone, including the suggested conservatee, relatives, and friends, has the right to contest a conservatorship. To block it, the individual opposing must file court paperwork, notify all concerned parties, and attend a legal hearing.

Judge’s Assessment and Appointment

Initiating conservatorship proceedings involves a judge evaluating the person’s mental capacity. If deemed necessary, the judge appoints a conservator, often a spouse or adult child.

Competing Interests and Legal Priorities

Occasionally, multiple relatives or friends may vie for the role, with the judge following state-established preferences. Most states prioritize the conservatee’s spouse, adult siblings, registered domestic partner, grown children, or blood relatives. Yet, the judge can choose someone else if deemed more suitable.

Family Dynamics and Potential Distress

Without clear evidence of the conservatee’s wishes, a non-relative’s appointment is unlikely if a relative is available. This scenario can lead to significant distress, especially if an estranged family member is chosen over the conservatee’s partner or trusted friend. When no suitable candidate is available, the judge may appoint a public or professional conservator.

How Conservators Are reimbursed

Conservators receive compensation from the individual’s assets they oversee. Payments, deemed “rational” by the court, are typically for professional conservators. However, relatives can also seek reimbursement through court petition.

Financial Support for an Individual Under a Conservatorship

A conservator does not need to support the conservatee, just to oversee the conservatee’s own assets and for making personal decisions on their behalf. However, the financial conservator has the responsibility to pursue all financial benefits and coverage for which the conservatee may be eligible for. These benefits might include Social Security, AV benefits, medical insurance, pension and/or retirement benefits, disability benefits, welfare, and Supplemental Security Income. When required, close relatives (including the conservator) frequently use their own funds to help support their conservatee.

Terminating a Conservatorship

Termination of a conservatorship occurs when:

  1. The conservatee passes away.
  2. The conservatee no longer requires this level of assistance.
  3. In financial conservatorships, the conservatee’s assets are depleted.
  4. The conservator resigns or is unable to fulfill duties, leading to another individual assuming responsibilities.

Source:

  1. Nolo. (2016, August 17). Conservatorships and Adult Guardianships. www.nolo.com. Retrieved August 31, 2022, from https://www.nolo.com/legal-encyclopedia/conservatorships-adult-guardianships-30063.html

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