Conservatorships

Q. What is a conservatorship?
A. A conservatorship is the process by which a court takes on supervision of a person when they can no longer live fully independently. Someone, often a family member, takes on the role of “conservator” — essentially the court’s representative — to make sure the “conservatee’s” needs are met.

Q. When is a conservatorship a good idea?
A. A conservatorship is a last resort – when proper estate planning did not take place. When a senior has not made plans to have someone make decisions for her, in other words there is no durable power of attorney or advanced health care directive, then a conservatorship may be required for any major decisions to be made on the senior’s behalf.

Q. What is the difference between a diagnosis of dementia and a legal lack of capacity?
A. Just because someone has received a diagnosis of dementia does not mean that they are no longer able to live independently or make their own decisions. The law presumes that everyone has capacity – the ability to make their own decisions. What that means depends on the actual decision that is being questioned. A person may be determined not to have capacity to make a will only when it can be shown that the person at the time of the will didn’t know the nature of their bounty and/or who the natural people to receive that bounty are. A person can have dementia and still know who her children are and what they own, and so a person with dementia may very well have the capacity to make a will. This is entirely consistent with our desires to get our affairs in order when we learn our health has changed.