Establishing a conservatorship of an aging parent means accepting significant legal responsibility to act and advocate for their care. The duties include managing a parent's daily care, medical care, and possibly financial decisions made on their behalf. Many conservators are family members who were previously caregivers, now cast into a formal legal role. At the same time, some are professional conservators appointed in order to circumvent problems of well-established family conflict and disagreement.
Becoming a conservator requires a court hearing and medical provider confirmation of the incapacity of the proposed ward. In legal terms, a ward is either a minor or an incapacitated adult under the protection of a legal conservator. Incapacity can include cognitive decline, dementia, brain injuries, prescription drug impairment, inability to perform daily living activities, or other serious health conditions.
Contested Conservatorships – What to Know
Sometimes an aging parent may disagree that they need a conservator, which can lead to contested conservatorship hearings. There may also be disagreement as to who the proposed conservator should be. A variety of concerns are often expressed during a contested hearing where family members may be unable to agree due to longstanding relationship issues.
A contested hearing can also become costly, with the family members opposing the conservatorship becoming responsible for their legal expenses. In cases such as these, a professional conservator is preferable for settling issues between a family where conflict is the norm.
Before conservatorship is granted, documentation of the cognitive impairment – like dementia or physical incapacity – that precludes a parent from making good decisions about their own care must be presented to the court. This documentation substantiates the degree of parental impairment as evidence for the conservatorship petition. A medical assessment, including a neuropsychological evaluation, provides additional proof for the need for a conservatorship.
The Role of the Conservator
A conservator's responsibility is to manage the person as well as the property and money. Some family members act as a conservator, but this is disallowed when a professional is appointed as professional oversight requires a system of checks and balances. A court-appointed family member conservator is assumed to act in the best interest of their family member.
If there are enough funds available, a conservator can hire caregiving help or provide different types of therapies or utilize adult daycare. A conservator's responsibility is to manage the funds in the best interest of the aging parent, and in no way should these funds be conserved to guarantee adult children an inheritance.
Conservators differ from state to state, including the terminology used for guardians and conservators. Some states have an office of public conservators that accepts cases from low-income individuals and some private clients. Just as in estate planning, probate attorneys, and elder law, it is crucial to retain an attorney that specializes in the area of conservatorship.
Establishing a Conservatorship
The process of establishing a conservatorship can be long and complex, particularly in the case of an aging parent, as they will lose important rights having their care entrusted to another person. A general discussion between the aging parent or older person and their relatives as to why conservatorship is the best way forward is a good place to begin.
The legal process starts with filing a petition for the appointment of conservator form. This form includes information about the proposed ward and their relatives, the person submitting the request, the reason conservatorship is necessary, and an explanation as to why alternatives to a conservatorship are either not available or appropriate. A court investigation commences determining if there is a need for a conservatorship. If warranted, a court hearing is scheduled where the judge reviews the petition, listens to statements and determines whether or not to grant the conservatorship petition.
Every court-appointed conservator is entitled to reasonable compensation for their services. Often when a conservator is a spouse, family member, or close friend, they will waive any payment. In the case of a private or public conservator, the individual is paid directly from the ward's estate.
An aging parent's ability to accept the idea of conservatorship on their behalf is an admission that they cannot maintain their independence. It is best to be very clear about the process and not mislead them or create unnecessary stress by not fully understanding all that is involved. Retaining an attorney who specializes in conservatorship can protect the process from missteps and make it a smoother transition for all parties involved. Please contact us at (513) 916 1600 to schedule a free consultation to discuss your legal matters.