What happens if age, illness or injury robs someone you love of the ability to make essential decisions about their finances or healthcare?
It’s not a situation that most of us like to consider. Yet it’s also vitally important to do so — we all get older and most of us don’t bother to sign a durable power of attorney that designates guardianship or control of our estate in the event of incapacitation.
So how do courts protect people who become incapacitated through dementia or other illnesses, and who haven’t signed a durable power of attorney?
In most cases, it’s through a legal process called conservatorship.
Conservatorship (also called “adult guardianship” in some states) is a process in which a court is petitioned to appoint a conservator or guardian to represent an incapacitated person.
In Connecticut, conservatorship proceedings may be undertaken at the behest of adults seeking help with managing their affairs (voluntary conservatorships) or at the behest of family members who believe their loved ones cannot manage their own affairs (involuntary conservatorship).
Conservatorships can be established over financial matters (a “conservator of the estate”), healthcare matters (“a conservator of the person”) or both. Often, the same individual will hold both positions.
Conservatorships are typically approved for people who are dealing with advanced cognitive issues or other serious illnesses or injuries that prevent them from acting in their own best interest.
Once a conservatorship has been established, the court will monitor how the affairs of the incapacitated individual are being managed, and make adjustments as necessary. This oversight is designed to protect against any mismanagement on the part of the conservator or guardian.
Conservatorships may also be temporary or permanent in nature.
How the Conservatorship Process Works
If someone is no longer capable of managing day-to-day affairs, a family member may petition the court to declare this individual incapacitated. A judge will hear and weigh evidence to that effect, and ultimately rule as to whether this person’s condition warrants the appointment of a legal guardian empowered to make decisions on their behalf.
If a court finds that incapacitation is present, the next step is an appointment of someone to serve as conservator, most commonly a spouse, adult child or sibling. However, guardianship may be legally contested. Multiple family members or friends may ask for the role of conservator. Courts typically give preference to spouses, children and other blood relatives, but may choose a third party, if the court believes it is in the incapacitated person’s best interest.
Conservators are subject to oversight by the court system, and often must secure a judge’s approval before making any significant financial or healthcare decisions for the person in their charge. They may also be required to submit regular reports that detail the actions they’ve taken. In Connecticut, a conservator must regularly report to the Probate Court.
Conservators are also generally compensated for their services. This fee is expected to be reasonable and is typically paid from the estate of the incapacitated person. This includes covering any bond payments a conservator may have to post in order to be eligible for handling the estate.
Conservatorships may end if the incapacitated person recovers or dies, or if the conservator can no longer discharge their required duties. In this case, the court would seek a new conservator to fill the role.
When Seeking a Conservatorship Makes Sense
Conservatorships can be a contentious process. When assessing someone’s capacity, courts may hear conflicting evidence from medical professionals, along with conflicting legal testimony from family members and other interested parties. In the absence of a durable power of attorney, it may also be difficult to discern the wishes of the affected individual.
Despite the legal and medical complexities involved, conservatorships play a critical role in protecting people suffering from age-related cognitive illnesses and other conditions of impairment. Because courts offer oversight of the conservatorship process, it’s often the best way to ensure that incapacitated people are protected — financially and otherwise — when they can no longer act in their own interest.
Because this process is often contentious and complex, it’s advisable to work with an attorney who is experienced in this legal niche. The right attorney can provide the legal guidance necessary to ensure that a loved one is treated with dignity — and remains protected when most vulnerable.
Getting a Conservatorship in Connecticut
At Brickley Law, we believe that conservatorships and other family law issues need to be handled with great sensitivity. While our firm is experienced in Connecticut probate law, we believe that what sets us apart is our abiding commitment to putting our clients first – protecting their interests, offering compassionate guidance and helping them navigate even the most trying personal circumstances.
If you’d like to learn more about how Connecticut law can help protect your loved ones and whether a conservatorship may be the right choice, please contact us at any time for a free legal consultation.
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