A conservator is someone who is appointed by a court to act on behalf of an adult individual who is incapable of handling his or her own affairs. Each state has different rules regarding conservatorship, and the terms are used in different ways depending on the jurisdiction. Another term used for a conservator is guardian.
In some states, a guardian handles the personal affairs of a ward who cannot act on his or her own, and a conservator handles the ward’s financial affairs. In others, a guardian would handle all of the affairs of a ward.
We practice law in the state of California. In our state, guardianship proceedings are conducted to appoint someone to care for a minor child. This could include both financial and personal decisions. A conservator would be appointed by a court to handle the affairs of an incapacitated adult again possibly including both financial and personal decisions.
Importance of Incapacity Planning
You may wonder why you should worry about a representative if you are an adult who is perfectly capable of handling his or her own business. Representation is a relevant issue for all of us because incapacity is quite common among people who have reached an advanced age.
Incapacity can strike due to a number of different underlying causes, but Alzheimer’s disease is the leading culprit. The disease is quite ubiquitous among the oldest old.
The term “oldest old” is used within the geriatric community to describe people who are at least 85 years of age. The Alzheimer’s Association tells us that 40 to 45 percent of people within this age group are suffering from the disease.
Individuals who are stricken with Alzheimer’s disease suffer from dementia, and this can make sound decision-making impossible.
A conservator could be appointed by the court to handle your affairs if you were to become incapacitated due to Alzheimer’s induced dementia or for some other reason.
You could avoid this loss of control and take the matter into your own hands through proactive incapacity planning. This could be done through the execution of durable powers of attorney. For larger estates, a revocable living trust will likely be a better choice than a power of attorney.
With a durable power of attorney, you name an agent or attorney-in-fact. This person would be able to make decisions on your behalf in the event of your incapacitation.
If you want to appoint two different decision makers, you could name a health care decision maker in an advance health care directive. Your financial representative could be empowered through the creation of a durable financial power of attorney.
When you have your durable powers of attorney in place, the state would honor your choices, and there would be no need for a conservatorship proceeding if you were to become incapacitated at some point in time.
We can help if you would like to embed an incapacity plan within a comprehensive estate plan. To schedule an appointment, please call our office.