Guarding the Interests of Our Parents
Most people are familiar with naming a legal guardian for a child when the parents are unavailable or unable to care for the child. As the population matures, more people are also becoming aware of the reverse situation, naming a guardian for an adult parent. As we grow older and our lives become more complicated many of our elderly cannot adequately make decisions in their best interests. A guardian makes those decisions for them.
Conservatorship
Guardians for adults are a growing area in elder law and estate planning. Every state has a statute regarding the procedure to name a guardian, sometimes called a conservator, for an adult. The incapacitated adult is the “conservatee” and the guardian is the “conservator”. Most states require a judge to approve the appointment and also require the adult to undergo a medical examination.
Unlike a child’s guardian who, like a parent, has complete control of the child an adult conservator’s powers may be limited. An incapacitated adult may only need help with specific needs. A conservator may be appointed with general powers or the court may only grant a limited conservatorship. A limited conservatorship may be created to solely control an incapacitated adult’s finances, health care decisions, or any other singular aspect of their lives that the adult can not adequately manage on their own. In a limited conservatorship the conservatee will still retain decision making ability over every other aspect of his/her life.
Power of Attorney
A power of attorney is another legal tool that allows a person to make decisions on someone’s behalf, creating a principal and agent relationship. Even though both the agent and conservator must act in the best interests of the other party there are significant differences between a power of attorney and a legal guardian/conservator. A guardianship is a court order while a power of attorney is an agreement between only the principal and the agent.
A power of attorney is voluntarily entered into by the parties, allows for both parties to make decisions concurrently and can be revoked at any time by either party. A guardian/conservator is only established by a court order and strips the conservatee of some rights. In some cases the proposed conservatee can also voluntarily petition the court to appoint a conservator for them. Once the conservator is appointed the court transfers certain rights from the conservatee to the conservator. A conservatorship cannot be revoked by the parties; the only way to end it is by another court order.
Best Interests
Like an attorney, a conservator is required to act in the best interest of their conservatee. A conservator cannot profit from decisions made on behalf of the conservatee and must not have a conflict of interest between their interests and their conservatee’s.
If you cannot find a family member or close friend to act as a conservator there are many professionals who specialize in being professional conservators. If you have questions or need a conservator there are probably attorneys near you that can help. There are many lawyers and law firms who specialize in Elder Law who can assist in establishing a conservatorship for adults.
For more information on conservatorship, contact an estate planning attorney today.