It’s rarely easy to make end of life decisions. Few among us like to dwell on our own passing or make tough decisions about how our final years will unfold. This is one reason why 60-percent of U.S. residents have done no formal estate planning.
The truth, however, is that detailed planning is essential to ensuring quality of life in our later years. This is particularly true given the fact that many people are living far longer than they anticipated. During such planning, it may be a good idea to consider a conservatorship.
What is a conservatorship?
A conservator is a court-appointed guardian tasked with the authority to manage the affairs (personal (“conservator of the person” and/or financial (“conservator of the estate”) of another person. A conservatorship can be either voluntary or involuntary. In making estate planning decisions, appointing a conservator might be advisable. Without making such designation, in the event you become incapacitated during your lifetime, someone could petition the court for appointment of a conservator if it determines that you can no longer manager your affairs. One significant benefit to having a conservatorship is that the court retains supervision over the conservator who is required to file periodic financial accountings in the case of a financial conservatorship. Conservatorships are also used for adult children who suffer from some incapacity such as substance abuse, mental illness, special needs or other challenges which impact their ability to care for their financial and/or personal needs.
It is important to note that a conservatorship does not replace the need for a power of attorney or a living will. For example, certain financial institutions will not allow an individual to take out credit in the name of a conserved person and require a power of attorney.
In the event that a person becomes incapacitated and in the absence of a power of attorney designation, a conservatorship becomes the primary option for the selection of a guardian for the incapacitated person. Conservatorships are common in cases where the person in question is in a coma, suffering from dementia or otherwise physically or mentally incapacitated. Family members may also seek to have a conservatorship established if they believe a loved one is suffering from exploitation as the result of diminished capability.
When establishing a conservatorship, the court may appoint separate individuals to serve as conservator of the financial matters and conservator of personal matters, or have one person fill both roles.
It should be noted that conservators are referred to as “adult guardians” in some states, although the process is largely the same.
Seeking a conservatorship is a significant decision. Once appointed, the new guardian will make critical health care decisions, pay the ward’s bills and file her taxes, decide where the ward will live etc. Some of these decisions require prior approval of the court. This supervision helps ensure that the health and property of the ward are well-monitored and protected.
Conservatorships can be quite time-consuming. Maintaining guardianship requires frequent contact with the ward, courts, considerable paperwork and the keeping of thorough records. If a loved one is no longer capable of managing her own affairs, however, a conservatorship is often the best and only option available if the person has not executed a power of attorney.
Legal assistance with conservatorships
An attorney who handles estate planning/probate matters can help you draft estate planning documents that provide for a durable power of attorney over financial and health matters, health care directives and/or a conservatorship. These documents allow you to choose who will be making decisions concerning your health and finances should you become incapacitated.
In the absence of such direction, however, you may also need the services of an attorney to help guide you through the process if a family member or loved one becomes incapacitated.
In both cases, choosing an experienced attorney will help ensure that your and/or your loved one’s rights are fully protected under the law.