A strange, and often uncomfortable thing, frequently happens as our parents age – a sort of role reversal begins to occur. The parent who has been your caregiver, your rock, for as far back as you can remember begins to appear weak and vulnerable – and in need of a caregiver. Like many adult children, you may find yourself becoming the caregiver to an aging parent who appears to become more childlike with each passing day. At what point do you need to consider petitioning for conservatorship over your parent? The Roseville elder law lawyers at the Northern California Center for Estate Planning & Elder Law help you decide if it is time to seek conservatorship over an aging parent.
What Is a Conservator ?
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. A Conservator is sometimes referred to as a Guardian in other states. However, in California, the term Guardian is reserved for protective proceedings involving minors under the age of 18.
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.
How Do I Know When a Conservator Is Necessary?
Unfortunately, there is no easy way to determine when a Conservator is necessary. As an adult child, it can be extremely difficult to acknowledge that a parent is no longer capable of making decisions and/or managing finances. The reality, however, is that despite advances in science, medicine, and technology that allow us to live longer, a way to stop the natural aging process remains elusive. Consequently, the longer a parent lives, the stronger the likelihood that he/she will succumb to the physical and/or mental deterioration that accompanies the natural aging process. When you add to that the possibility of developing Alzheimer’s, or another age-related form of dementia, it becomes more and more likely that your parent will reach a point at which you will need to step in to prevent injury or harm. Ultimately, only you can decide when it is time to petition to become your parent’s Conservator; however, some common signs that indicate it is time to consider conservatorship include:
- Frequent, unexplained injuries
- Injuries that are increasing in severity
- Unpaid bills when the funds are available to pay the bills
- Money missing from accounts without an explanation
- Items missing from the home
- Missed doctor appointments without explanation
- Medication not being taken as prescribed
- Memory loss that exceeds normal aging
- Deteriorating hygiene
- Unexplained weight loss
- Basic household chores being neglected
- Mood swings
- Periods of confusion
How Do I Become My Parent’s Conservator?
If you believe that it may be time to consider becoming your parent’s Conservator, the first step is to consult with an attorney experienced who specializes in conservatorships. If the attorney agrees that a Conservator is necessary, you can initiate the court process required to become your parent’s Conservator. Because conservatorship is the most restrictive option, a court must review your petition and make a judicial determination that a Conservator is, indeed, necessary in order to protect your parent. The court will then consider your request to become the Conservator. Courts typically look first to a close family member when a Conservator is needed, increasing the likelihood that your petition will be approved if everything is in order. If the court grants your petition, the court will explain the bounds of your authority over your parent and/or your parent’s estate based on what the court determines is necessary.
Alternatives to Conservatorships
Because conservatorships are costly, time-consuming and burdensome, it is always wise to avoid them if you still have the opportunity. Alternatives include creating estate plans based upon wills or trusts together with financial and medical powers of attorney. However, to pursue these options, the elder in question must still have at least some level of mental competency. A diagnosis of Alzheimer’s or dementia does not automatically make a person incompetent and unable to create legal documents such as wills, trusts and powers of attorney. However, as these diseases progress, incompetency is likely, so it is in everyone’s best interest to address the issues as early as possible.
Please download our FREE estate planning checklist. Although our office does not directly handle Conservatorship proceedings, if you have questions about alternatives to the conservatorship process in California, contact us today by calling (916)-437-3500 or by filling out our online contact form.