A conservatorship is the process by which a court takes on supervision of a person when they can no longer live fully independently. A guardianship is the process by which a court takes on supervision of a minor. Someone, often a family member, takes on the role of conservator or guardian — essentially the court’s representative — to make sure the conservatee’s/minor’s needs are met. The conservatorship/guardianship process can be expensive, complicated and stressful. It is important to have competent legal counsel to see you through. The conservatorship/guardianship process can often be avoided through proper estate planning.
Conservatorship Frequently Asked Questions:
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.
Guardianship Frequently Asked Questions
Q. When is a guardianship necessary?
A. A guardian is appointed by the court when someone other than a parent needs to take custody or control of a minor. If a parent is not present or able to provide appropriate care for a child, the court must be involved to appoint someone who has the legal authority to make decisions on that child’s behalf.
Q. What is the difference between a conservatorship and a guardianship?
A. The main difference between a conservatorship and a guardianship is that conservatorship concerns an adult and a guardianship concerns a minor. The legal processes to obtain either are similar. Important differences exist, however, and it is important to consult with someone who knows the process for either.
Q. What do I do if my developmentally disabled child is turning 18?
A. Once a person turns 18, the law assumes he or she can make his or her own decisions. A parent of a developmentally disabled child will no longer have the legal authority to make decisions on the child’s behalf once the child turns 18. In order to maintain authority to make decisions for the child, the parent must be appointed “limited conservator” by the court. A limited conservatorship is a special kind of conservatorship just for the developmentally disabled.