Who Needs an Adult Guardianship?
If the person you’re taking care of is in good health, it’s possible that his or her need for a guardianship probably hasn’t even crossed your mind. However, if you are considering this, you’re not alone. Unfortunately, a lot of elderly adults go through long periods of time toward the end of their lives when they simply cannot make decisions on their own—because of Alzheimer’s or other forms of dementia, a stroke, an accident, or some other type of very serious medical condition. If the person has made an advanced health care directive, it may directions for their care may already be provided for if he or she becomes incapacitated. If the person also has a durable power of attorney for finances, money issues will also not be a problem.
However, what do you do if the person only has one of those documents—or neither? Or what if there are other important decisions those things don’t help with? In this instance, a guardianship (also known as a conservatorship) might be handy to have. However, it’s not easy to set up, may require a lawyer, and needs to be approved by a judge. Nonetheless it can help to solve the big issue of who makes the major decisions that involve the elder when he or she is unable to do it herself and there are no other written directives.
What is an Adult Guardianship or Conservatorship?
Both of these words mean basically the same thing, however, some states use one name or the other. However, for the sake of simplicity, we’ll just say conservatorship. If someone is not able to make decisions for themselves on their own, the judge can appoint a person—the conservator—to make the decisions for them. These decisions made by the conservator have legal backing of the court, and a conservator might be appointed to help with decisions regarding finances, medical or personal care, or both.
The person appointed to make decisions about medical care or other aspects of personal life—like where the person should live—is called a “conservator of the person.” Someone who is appointed to make decisions regarding finances is normally called a “conservator of the estate.” If both are required, the court can appoint the same person for both positions.
Pros and Cons of a Conservatorship
However, there are a few pros and cons of setting up a conservatorship, so let’s briefly look at them, and then we’ll see when a conservatorship might be a good idea for someone you love.
- Allows family members to know that someone is making decisions
- Gives clear legal authority to deal with third parties
- Gives a process to have a judge approve major decisions
- Expensive to set up, requires a lawyer, legal papers, and a court hearing
- Time-consuming, including lots of ongoing paperwork
- May be humiliating for an elder who is still somewhat capable of doing things on their own.
- May be emotionally difficult if family members are in disagreement over who should be the conservator
When is a Conservatorship a Good Idea?
There are two things that have to happen before you think about a conservatorship: first, the person has to be either physically or mentally incapable of making important decisions on their own. Second, they have to not have any other legal documents (like a living will and power of attorney for finances) that cover decisions regarding personal and financial matters.
- If there isn’t a power of attorney for finances, a conservator of the estate may be required.
- If there is no living will or medical directive, a conservator of the person may be necessary to make medical decisions.
- Even if there is a medical directive, the person may still require a conservator of the person to decide those health matters that aren’t covered by the medical directive (if the medical directive doesn’t name an agent to make those decisions to begin with).
- Even if a power of attorney is present for both health care and finances, a conservator of the person could be necessary to help make decisions about the person’s personal life—like where to live, for example, or who is allowed to spend time with the person.