As an adult child, one of the most difficult things you may go through is watching your parent slowly succumb to the natural aging process and/or to one of the many age-related dementia conditions, such as Alzheimer’s. At some point, you may need to consider become your parent’s conservator. Petitioning for conservatorship, however, often feels as though you are taking away your parent’s independence and autonomy. What you need to focus on, however, is that failing to act could put your parent at risk for serious injury and/or victimization by those who prey on the elderly. In this post, we explain how you can protect your aging parents.
What Is Conservatorship?
In California, if a court determines that an adult is unable to manage his/her affairs (finances, assets, and estate) and/or make decisions for himself/herself, the court will appoint a Conservator. California recognizes both a Conservatorship of the Person and a Conservatorship of the Estate.
A Conservatorship of the Person is established when an adult is unable to care for his/her personal needs, such as maintaining regular hygiene and taking prescribed medication. A Conservator of the Person will be responsible for protecting the adult and will have the authority to make personal decisions for the adult, such as where he/she will live.
A Conservatorship of the Estate is established when an adult cannot handle financial matters. A Conservator is appointed to manage the adult’s income and pay bills and may have authority to do things such as sell property or encumber assets owned by the adult.
Anyone can petition to become a Conservator; however, a court will typically look to close relatives first when choosing a Conservator. Unfortunately, if more than one person petitions to become a Conservator, a costly and divisive court battle may ensue, causing irreparable harm to the family as a whole.
Does My Parent Need a Conservator?
Deciding to pursue conservatorship is a highly personal decision that must be made based on the unique set of circumstances in which you find your parent. It may help though to consider what the American Bar Association (ABA) has said about the subject. According to the ABA, a senior may need a conservator:
- When they can no longer manage their affairs because of serious incapacity, and
- No other voluntary arrangements for decision making and management have been set up ahead of time, or if they have been set up, they are not working well, and
- Serious harm will come to the individual if no legally authorized decision maker is appointed.
The ABA goes on to say “A decision to seek guardianship (conservatorship) should never be based on stereotypical notions of old age or handicaps. A person has the right to make foolish or risky decisions. These decisions by themselves do not mean that the person lacks capacity. A competent person chooses to run risks. An incompetent person runs risks not by choice, but by happenstance.”
Please download our FREE estate planning checklist. If you have additional questions or concerns about protecting your aging parents, contact us at the Northern California Center for Estate Planning & Elder Law by calling (916)-437-3500 or by filling out our online contact form.
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