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As a family caregiver, you might have wondered what happens if your elderly parent or spouse becomes unable to make choices for themselves. What are the legal ramifications? What do you need to do to ensure they will be taken care of even when they can’t make their wishes known anymore? You might need a conservatorship.
Conservatorships are in the news lately, thanks to a short list of celebrities who are going through the process. Over the last year or so, these famous folks have brought conservatorships into the limelight:
· Comedian Jay Leno’s wife, Mavis, has been battling dementia for years. Jay Leno petitioned the Los Angeles court to make him her conservator. Specifically, he wanted to make changes to a trust and other estate plans to guarantee that Mavis would be cared for in the event of his own death.
· Musician and Beach Boys cofounder Brian Wilson, 81, is the subject of a conservatorship filing. Wilson’s wife, Melinda, was caring for his day-to-day needs until her death. Wilson suffers from a major neurocognitive disorder that makes it impossible for him to care for himself, so in the wake of the loss of his spouse, family members stepped in and requested conservatorship.
· Music legend Cher, 77, is in the process of trying to obtain conservatorship over her adult son’s affairs. Her 47-year-old son, Elijah Blue Allman, suffers from “severe mental health and substance abuse issues” that make it difficult for him to manage his day-to-day health.
According to Business Insider, about 1.3 million adults were under conservatorship in 2021, with the courts managing a whopping $50 billion in assets for those individuals.1 So if you find yourself wondering if a conservatorship is the right move for your loved one, you’re certainly not alone.
A conservatorship is not to be taken lightly. It’s a powerful tool that can be used to protect someone when they become unable to care for themselves.
What is a Conservatorship?
According to the Legal Information Institute, a conservatorship is “the appointment of a conservator by the court to manage a person’s affairs who is unable to handle them due to their mental capacity, age, or physical disability.”
The conservator can be a spouse, family member, or other caregiver the court feels will be able to handle the affairs of the conservatee – that’s the person who is giving up control to that court-appointed conservator.2
A conservatorship might also be referred to as a guardianship. Conservatorships are governed by state laws, so while we can dive into the basics, you’ll need to check with a local attorney to learn about special rules for your state.
Conservatorships aren’t warranted just because a person is getting older. They are warranted, however, when a person can no longer care for themselves, keep stable housing, or obtain food or clothing. They are also helpful if a person has a cognitive issue that reduces their capacity to make decisions, especially financial ones.
A conservatorship might be temporary and limited. A good example of this comes from famed musician Joni Mitchell, who was placed under a conservatorship as she recovered from a burst aneurysm. During that time when she was unable to care for herself, the court appointed her friend Leslie Morris to handle Mitchell’s day-to-day affairs, but this conservator didn’t have access to Mitchell’s estate. This is an example of a temporary, limited conservatorship designed to help the ailing person during a difficult time in their lives.
But others might become permanent and full. This is especially true for those who have persistent conditions that prevent them from taking care of themselves, such as dementia, Alzheimer’s, or issues with their mental health. A famous example of a full conservatorship was that of Britney Spears, who was under the guardianship of her father for 13 years before a court deemed her fit to handle her own affairs again.
A permanent and full conservatorship might also become necessary if a person becomes incapacitated with no advance directives or power of attorney signed. In that case, a judge must make the call on who is best to care for that person, including handling their estate and medical affairs.
How to Become a Conservator
If it’s determined that someone simply can’t handle their day-to-day life, including their physical and financial needs, it might be time for a conservatorship. It starts with filing a simple petition with the court; then things begin to move.
Most attorneys recommend that families talk through the situation and decide who will take on the responsibility. But some families might be in conflict about who would be best to care for that person. In that case, there could be multiple petitions filed to the court or a request to block a conservatorship; then things can get a bit messy.
Time might be of the essence. In that case, the courts can fast-track the conservatorship request. This is especially true if there has been a sudden accident or injury, such as a stroke or traumatic brain injury. In that case, a temporary conservator might be appointed while the judge takes the time to look through the petitions and decide on the appropriate way forward.
Conservatorships might also be handled by multiple people. For example, someone might be appointed to care for that person’s physical needs, while another person might be asked to handle the financial side. The court might ask probing questions to determine who is most trustworthy and able to handle the situation going forward.
How a Conservatorship Works
When a conservatorship begins, the conservator will be given a list of instructions and it will be made clear what they can control and what they cannot. In a full conservatorship, the conservator has the power to sign contracts, move money around, and make every decision for that person, including decisions on their medical care.
Once a conservatorship is in place, the courts will watch over the situation to ensure that there is no abuse or fraud. The rules vary among states, but a general rule of thumb is that the conservator must provide a list of assets that the conservatee has – including a home, vehicle, and all financial accounts.
At least once per year, the conservator is required to file a report with the court explaining the actions they have taken over the last year, complete with an accounting of where the conservatee’s money has gone.
There might be occasional checks by a court-appointed trustee or social worker. These might be phone calls, visits, or letters. Not responding promptly can trigger further concern and the court looking into the situation.
A judge can also rescind the conservatorship at any time, but especially if it appears a conservator isn’t doing their job properly. If there are any questions about a person’s financial fitness for the role, the court might require the conservator to post a bond equal to the value of the person’s estate. If there are concerns about a senior’s physical health and the decisions being made for them, the court can request further information and appoint a temporary guardian for the elderly person.
Keep in mind that if you are dealing with family strife or others who question your judgment, run every big decision past the court first. In most cases, that will apply to high-dollar spending on medical bills or plans to sell the family home. But in cases where the family dynamic is especially difficult, you might want to get the court to sign off on anything, even an affordable medical alarm or aging in place home modifications.
Explain what you want to do and why you want to do it, and allow the court to give you the go-ahead. When that happens, though you might face some conflict about your choices, you have the backing of the court saying it was an appropriate decision. This can save you from lawsuits down the road.
Avoid Conservatorship by Planning Ahead
Estate planning offers many advantages – and one of them is the ability to avoid the messy legal arena of conservatorships.
Family caregivers should encourage their parents and other senior loved ones to fill out all the necessary paperwork to ensure their needs are met and their wishes are honored during their golden years. The paperwork is a safety net in case something goes wrong, so there is something in place to make sure the right things happen.
Consider it as you would a button alert – you hope you never need it, but if you do, having it right at your fingertips is incredible peace of mind. The same is true of filling out the necessary paperwork and getting those decisions squared away before you actually need it.
According to the Elder Protection Center, a person needs the following:3
Advance directive. Also known as a medical directive, this document sets out the care you want if you become incapacitated and unable to make your wishes known. This directive tells medical professionals what specific care you want to have.
For instance, you might wish for pain relief if necessary but refuse any other interventions. Or you might want the doctors to take heroic measures for you, including a feeding tube, breathing assistance, and the like. These documents can give you peace of mind and spare family members the burden of making tough decisions.
Power of attorney. This allows someone else to make decisions on your behalf. But what if you want to give someone power only in limited circumstances? There are a few options for that. Here are the types of power of attorney you might need:
· Limited: This power of attorney allows someone else to handle your affairs for a very limited purpose. This might mean that someone else can sign a contract or deed for you while you are out of town. This power of attorney is usually meant for a set period of time and expires when that time is up.
· General: This type of power of attorney gives someone the right to handle everything about your life for you, including signing contracts, paying bills, and making financial decisions. This type of power of attorney can start right away and doesn’t have to be in place simply because a person is incapacitated. Someone can have this type of power of attorney because they need a little help with their affairs. This lasts until your death or until you rescind it.
· Durable: This power of attorney might be limited or general. The difference is that this power of attorney continues to be in effect even if you are incapacitated. This allows a person to continue handling your affairs no matter what changes have occurred in your physical health. It continues until your death or until you rescind it.
· Springing: If you become incapacitated, this type of power of attorney kicks in, allowing someone else to make decisions for you. The power of attorney can be put in place well before you need it and provide peace of mind. The document should detail exactly what constitutes “incapacitated” and when the power of attorney is triggered.
General will. A will sets forth what you want to happen to your estate in the event of your death. This helps you avoid probate (where the court makes decisions about your assets) and takes pressure off your family to make decisions about your assets after you’re gone. Without a will, your estate falls to the family and courts to figure out, and that might not turn out the way you want it to.
Revocable trust. This can allow you to keep control of your estate but also allow your beneficiaries to take over when you become incapacitated. Since there are many rules to a revocable trust and those can vary widely from one state to another, it’s important to talk to an attorney in your area to get the details you need.
Don’t Wait to Plan
It’s important to remember that you can create these documents at any age. Though it’s a great idea for seniors and the elderly to have these documents in place, planning like this is much like choosing an emergency alert for elderly adults – though it’s good for seniors to have, you don’t have to be of advanced age to use it. The protection afforded you by those documents can be just as powerful when you are 40 as they can be when you are 80.
If you don’t have someone you trust to handle your power of attorney and other business, consider using a licensed fiduciary group. They will require you to fill out many forms that detail exactly what you want in certain circumstances and will ensure that your finances are protected if you can no longer make choices for yourself. There is no personal touch with one of these companies, but you can rest assured that your decisions will be followed to the letter.
