Conservatorship / Guardianship for Seniors 4/19/2010
What is Conservatorship / Guardianship?
When an elderly person becomes incapacitated by a serious illness, such as Alzheimer's disease, the person’s care provider may need to go to court to get appointed to make financial, legal and health care decisions. This appointee is called a conservator or guardian, and the legal proceedings are called conservatorship or guardianship hearings.
The courts recognize two types of conservatorship / guardianship:
Conservatorship/guardianship of the person. This allows a conservator / guardian to select medical treatments, choose the proper place for the senior to live, decide whether the senior can vote or marry, and make other choices about the person's physical and emotional well being.
Conservatorship/guardianship of the property. This puts a conservator/guardian in charge of money, bank accounts, investments, homes and other real estate - all assets owned by the incapacitated senior. Part of the job is making sure seniors receive all the financial benefits to which they are entitled, such as Social Security, Supplemental Security Income, Medicare, Medicaid, disability, insurance and pensions.
Why Conservatorship / Guardianship is Important
You can't take care of an incapacitated senior if you don't have the legal power to make decisions - to pay bills, for example, or authorize medical treatments. In a perfect world, the senior already will have executed legal documents such as durable powers of attorney for finances and health care. These documents accomplish similar goals but don't demand the time, money and emotional upheaval of going to court. And they guarantee the person selected by the senior has the authority to step in when the time comes.
All too often a disabling stroke, heart attack or other illness strikes unexpectedly and no powers of attorney are in place. In that case, conservatorship / guardianship may be the only option for those concerned about a senior's welfare. The best way is to make sure the senior takes action while still competent. The senior can pick whom to put in charge of finances and health care and the steps doctors should take in the event of a long disability or terminal illness by executing three documents:
- Durable power of attorney for finances
- Durable power of attorney for health care, also called a health care proxy
- A living will, also called a health care directive or directive to physicians
How Does Conservatorship / Guardianship Work?
Anyone can file a conservatorship / guardianship petition with the court. Usually it's a family member, caregiver or friend, but it also could be a social service agency, a health care facility or other organization. The court hears testimony and rules on whether the senior is capable of living independently. If the court finds the senior incompetent, it will appoint a conservator/guardian to take over some or all of the senior's affairs.
The senior can fight a declaration of incompetence or the appointment of any specific person as conservator/guardian. The senior has the right to appear at all hearings, cross-examine witnesses and be represented by a lawyer. If the senior can't afford private counsel, the court will appoint an attorney or a guardian ad litem (a guardian for this particular proceeding) to protect the senior. The court can revoke a conservatorship / guardianship if the senior recovers and can prove a conservator / guardian no longer is needed.
How can I learn more about Conservatorship / Guardianship for Seniors?
To find out more information, contact your legal advisor or the court assistance officer where you live.
By phone, you can call the 2-1-1 Idaho CareLine by dialing 2-1-1 or 1-800-926-2588 to get the contact information of your local Legal Aid Services office and your local court assistance officer.