Who Can be a Guardian?

Earlier, we discussed the concept of guardianship (also called conservatorship) and when a guardianship might be necessary for older adults. Now, we’ll take a look at the answer to another question—who can be a conservator? We’ll also see what the duties are for someone who is appointed to the position. So, without further ado, let’s get started.

In our previous article, we discussed the two types of conservatorship: conservator of the person, and conservator of the estate. For conservator of the person, someone who lives close to the elder, usually an adult child or sibling, is normally the best choice. When deciding a conservator of the estate, someone who is familiar with handling finances, especially if the finances are either substantial or complicated, could be able to carry out those duties best. In either case, however, it should be someone who can devote the necessary time needed to manage all of the elder’s affairs. If there is no close relative, or no family member who is well-versed in finances, then the judge can appoint a professional conservator—either a public officer or a private, paid conservator.

When it comes down to it, you may feel as if you’re the best one for the job. However, another family member may disagree. So before you file or sign any court papers, talk it over with the family and determine who would be best suited to the job. Figuring this out ahead of time can work wonders in reducing stress, and make for a much smoother and less expensive legal process.

Not only must the conservator make decisions about the elder’s everyday care, but they may also need to make major personal or financial decisions for them as well. This could include things like how to best spend their assets on long-term care or where the elder will live. 

The conservator must handle any administrative matters, such as dealing with doctors, Medicare, insurance, or a long-term care agency or facility. This can include applying for benefits pensions, medical coverage, etc. 

The conservator also has to keep careful record of decisions and expenditures made on behalf of the senior, and this information needs to be reported regularly to the court; how often and how much detail must be reported is dependent on the judge’s orders in the particular case. The judge may ask the conservator to appear regularly in order to report on what has transpired since the last time, or he or she may require the conservator to come back to court before making certain big decisions, like selling the house or moving the elder to a nursing home.

If the conservator mishandles the elder’s affairs, he or she is not financially responsible for poor judgment in handling financial issues. The person would only be held personally responsible if it were made known to the judge that he or she was stealing or committing fraud, or had recklessly risked the elder’s assets.

If you or other members of the family think the conservator constantly makes bad financial decisions for the elder or bad decisions regarding their personal care, you can file court papers that make these issues known to the court. At this point, the judge decide whether to replace the conservator or not.

Finally, the conservatorship will likely last as long as the elder lives, but may be terminated if he or she regains the ability to make decisions. A financial conservatorship, similarly, may end if the elder no longer has assets to deal with.