In a recent article on forbes.com, Boston estate planning attorney Christine Fletcher notes “Five ways to know you need a guardianship (conservator) for Mom (or Dad).”
In Attorney Fletcher’s excellent article, she notes that, even with an effective estate plan, there are times when a conservatorship cannot be avoided.
Fletcher’s five reasons for conservatorship include:
A parent refusing to sign a power of attorney;
Having assets (real or personal) that may be difficult to sell with a power of attorney;
Disagreement with a parent over a need for a nursing home;
Need for medical interventions;
Every adult is assumed to be capable of making his or her own decisions unless a court determines otherwise. If any adult becomes incapable of making responsible decisions due to a mental disability, the court will appoint a substitute decision-maker, often called a ”conservator”. Conservatorship is a legal relationship between a competent adult (the “conservator”) and a person who, because of incapacity, is no longer able to take care of his/her own affairs (“the ward”). In Attorney Fletcher’s excellent article, she notes that even with an effective estate plan, there are times when a conservatorship cannot be avoided.
The conservator is authorized to make legal, financial, and health care decisions for the ward. Depending on the terms of the conservator, the conservator may or may not have to seek court approval for various decisions. A person appointed only to handle finances is called a “conservator.”
The standard under which a person is deemed to require a conservator differs from state to state. In some states, the standards are different, depending on whether a complete conservatorship over finances only is being sought. Generally a person is judged to be in need of conservatorship when he/she shows a lack of capacity to make responsible decisions. A person cannot be declared incompetent simply because he/she makes irresponsible or foolish decisions, but only if the person is shown to lack the capacity to make sound decisions. For example, a person may not be declared incompetent simply because he/she spends money in ways that seem odd to someone else. Also, a developmental disability or mental illness is not, by itself, enough to declare a person incompetent.
In most states, anyone interested in the proposed ward’s well-being can request a conservatorship. An attorney is usually retained to file a petition for a hearing in the probate court in the proposed ward’s town of residence. Protections for the proposed ward vary greatly with from state to state, with some simply requiring that notice of the proceeding be provided and others requiring the proposed ward’s presence at the hearing. The proposed ward is usually entitled to legal representation at the hearing, and the court will appoint an attorney if the allegedly incapacitated person cannot afford a lawyer.
At the hearing, the court attempts to determine if the proposed ward is incapacitated and, if so, to what extent the individual requires assistance. If the court determines that the proposed ward is indeed incapacitated, the court then decides if the person seeking the role of conservator will be responsible a conservator.
A conservator can be any competent adult – the ward’s spouse, another family member, a friend, a neighbor, or a professional guardian (an unrelated person who has received special training). A competent individual may nominate a proposed guardian through a durable power of attorney in case she ever needs a guardian.
Attorney Daniel O. Tully is a partner in the law firm of Kilbourne & Tully, P.C., members of the National Academy of Elder Law Attorneys Inc., with offices at 120 Laurel St., Bristol (860) 583-1341.