For an adult child, watching a parent’s physical and/or cognitive decline is extremely painful. At some point, a role reversal may occur, turning the parent into the child and vice versa. At this point, it is probably time to consider petitioning to become your parent’s conservator. Taking what seems like such a drastic step may feel like you are stripping your aren’t of his/her freedom and dignity. However, your parent may actually benefit from a conservatorship.
What Is an Adult Conservatorship?
Conservatorship is a legal relationship, established through a court process, whereby a responsible adult or organization is appointed (the “conservator”) to care for someone who needs help (the “conservatee”) caring for himself/herself and/or managing his/her finances. 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.
Does My Parent Need a Conservator?
Deciding when the time has come to consider petitioning or conservatorship is a highly individual decision that only you can make after careful contemplation and consultation with other family members and an experienced attorney. 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 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.
Advantages of Conservatorship
Like many people contemplating the need to petition for conservatorship of a parent, it may be easy for you to think of reasons not to move forward. You may feel as though you are betraying your parent in some way or that you are taking away your parent’s autonomy and independence. What you need to realize, however, is that failing to move forward could leave your parent vulnerable to elder abuse or victimization by those who prey on the elderly. In addition, there are numerous other advantages to have a conservatorship in place, such as:
- Other members of the family know that someone is dedicated and devoted to caring for their family member.
- You have clearly established legal authority to interact with third parties, such as a long-term care facility, physicians, government agencies, and even law enforcement officers if necessary.
- Someone has the authority to receive income and benefits and pay bills
- A process is in place for major decision making including long term care and residence.
- The legal ability to consent to medical treatment is in place.
- Assets are protected and managed properly.
Disadvantages of Conservatorship
When possible, it is better to plan for one’s incapacity in advance through the proper establishment of both financial and medical powers of attorney and, for many, an estate plan based upon a revocable trust. The costs of establishing such plans are far less than the costs of a court proceeding like a conservatorship.
Many folks would also like to avoid the inherent burdens and delays associated with California’s often overcrowded and underfunded court system. Hearings on routine matters make take months to be heard. Also, ultimate control is now in the hands of a third party, namely, a judge, rather than a trusted family member, friend or advisor.
To use these planning tools to avoid court proceedings requires that action be taken BEFORE a person’s mental capacity is in question. When is the best time to plan? The answer is always NOW! The future is always uncertain, so when each of us will lose our ability to handle our affair cannot be predicted.
Please download our FREE estate planning checklist. If you have additional questions or concerns about how to avoid conservatorships, 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.