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An individual’s capabilities are prone to change over the span of a lifetime, and while people in general may have an innate desire to maintain their autonomy and independence indefinitely, the realities of aging and illness often create obstacles to autonomy. When the time comes that it is found that an elder loved one is no longer able to make sound decisions regarding their health needs and best financial interests, appointing a guardian or conservator to act on their behalf often becomes the best solution.
We hope this article will serve as a resource for individuals who are in the process of deciding whether to avail themselves of this option, and to shed light on the workings of guardianships and conservatorships.
A conservatorship, also referred to as a guardianship of the estate, typically grants one or more court-appointed people the power to make estate planning decisions on financial matters for someone who is found to be unable to manage his or her affairs due to infirmity or impairment.
If the court finds that the conservatee is capable of having some input on these matters then a limited conservatorship will be granted. This allows the conservatee a greater say in certain areas. A conservator’s job in those cases usually involves managing the economic resources of the individual deemed to some degree unfit.
Guardians and conservators are appointed to individuals who are either too young to be autonomous, as in the case of a child, or are mentally or physically incapacitated and unable on their own to make proper legal, medical, and financial decisions. The authority of the guardian may be limited in accordance with the degree of their ward’s incapacity. Reasons for these appointments include:
Appointing a guardian or conservator can be difficult and costly, and one of the more difficult aspects of this process can be the task of vetting those interested and qualified to hold this position.
Those who tend to be granted the position of guardian or conservator are usually competent and interested members of one’s family or court-appointed attorneys. Given the high potential for exploitation or misuse that such an appointment would afford a guardian or conservator, individuals with outstanding debts or criminal records are eliminated as a matter of course.
he conditions that must be met by potential guardians and conservators have been the subject of federal inquiries. The Government Accountability Organization(GAO) continually look into the prevalence of exploitation, neglect and abuse of seniors in the guardianship system, and why these misuses of authority are possible. GAO investigators focus on instances in which guardians used their power to embezzle or misappropriate, or those who stole or improperly obtained assets from incapacitated victims.
