Should You File for Guardianship or Conservatorship?

When Should You File for Guardianship or Conservatorship?

There are a variety of reasons that your parent may need a guardian or conservator to handle their affairs, but sometimes guardianship isn’t necessary. If, for example, your parent has appointed a power of attorney before they required a guardian, then guardianship may not be needed. Unfortunately, with different legislation in different states, the legal process is confusing, so let’s discuss when you need (or don’t need) to file for guardianship or conservatorship.

First, it’s important to understand the distinction between guardianship and conservatorship. This will vary between states, but in most a guardian can make all decisions relating to the elder.  This means a guardian is responsible for the finances, living situation, and medical decisions of their charge. This includes where they live, which doctor they see, and how much money they spend.

While a guardianship can apply to children, the elderly, or anyone who is legally unable to make their own decisions, a conservatorship only applies to an adult.

Rules Differ by State

In many states, the conservator is only responsible for financial decisions. A conservatorship arrangement is ideal in a situation where an elder can no longer handle their money, but their personal decisions are taken care of. The senior’s living situation may be stable, for example, when they are in an assisted living facility, or they may have a power of attorney who handles all decisions except for their finances.

When a senior has an estate that is complicated by several investments and properties it may be too much for them to manage, but they could still handle making decisions about their person. In this case a conservatorship or trustee for finances would be helpful.

In some states, conservatorship and guardianship are the same thing and cover both personal and financial decisions. In order to petition for either position, you must have an interest in the elder’s well-being (as a family member, you automatically fulfill this requirement). However, you do not have to step into the role yourself. If you feel you’re not the right person for the job, but know your parent is no longer able to handle their affairs, you can ask for a professional guardian, or even a public guardian, to be appointed.

If an advanced directive or a power of attorney (POA) has been decided upon there’s usually no need to appoint a guardian or conservator, but there are exceptions. The first exception is with a general POA where the POA ends when the elder becomes unfit to make their own decisions. In this case, you would need to file for guardianship or conservatorship.

Unlike a general POA, a springing POA comes into effect once the elder is no longer capable of making their own decisions. If your elder has a springing POA that covers all areas of their life, no guardian or conservator is needed. However, many types of Power of Attorneys only cover one area of a person’s life. For example, your parent may have planned for a financial POA, but not one to make their health decisions. In this case, you would want to apply for guardianship to ensure your elder’s living conditions and health needs are being looked after.

While splitting duties between POAs, guardians, and conservators is a complicated process, often it’s done to give the elder the best living situation possible. For example, it may be in your best interest for their son, who is an accountant to manage their finances, while their daughter, who is a doctor to make their medical decisions.

Talk to an elder law attorney about the various options available to best utilize each family member’s skills and disperse the responsibility for their care between the whole family. Whenever you’re unsure of how to proceed, it’s best to get advice from an experienced estate lawyer or elder law attorney who is familiar with your state’s guardianship laws.

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