What Is Conservatorship?
Generally, people who have reached the age of legal majority are recognized as having authority over their own personal decisions and financial affairs.
In some cases, however, an adult is simply not capable of caring for themselves, because they have become incapacitated in some way.
What does incapacitation look like? It usually occurs in a situation where an adult has some sort of illness, injury, or other condition, the effects of which prevent them from making basic life decisions. Common causes of incapacitation include dementia (commonly caused by Alzheimer’s disease), severe brain injury, stroke, or a coma / persistent vegetative state.
In all of these situations, a person is technically alive but unable to care for themselves. And when these situations occur, they raise all sorts of complicated legal questions.
Consider the case of Terry Schiavo, a Florida woman who became the center of a set of legal challenges, lasting nearly a decade and receiving national media coverage, after she entered a persistent vegetative state. While Schiavo’s feeding tube was eventually removed, this case illustrates the sorts of difficulties that can emerge when a person is unable to make their own decisions.
So how does the law handle cases like this? Generally, the court system will act to create a conservatorship, sometimes also known as an adult guardianship.
In a conservatorship, another party is tasked with the responsibility to make decisions on behalf of the incapacitated person. The person who is appointed as decision-maker is known as the conservator, and the incapacitated person is known as the conservatee.
Why Conservatorship Matters
Today, conservatorship is more relevant than it was in the past. With the advance of medical technology, it is more and more common for people to be kept alive and in an incapacitated state as a result of injuries and illnesses which might have previously killed them.
Most of these conditions, such as Alzheimer’s, tend to affect the elderly, and so conservatorship is frequently a matter of elder law. However, this isn’t always true. Young people can and do suffer brain damage and other afflictions that make conservatorship necessary.
This means that you should not avoid considering the issue of conservatorship just because you are young and healthy! Terry Schiavo, who we mentioned above, was only 26 when she entered a persistent vegetative state, and many people similarly incapacitated are even younger.
There are a few steps which you can take to plan ahead for if you ever become incapacitated and require a conservatorship. We’ll go into detail about those below. However, it is important to note that you must take these steps before you actually become incapacitated.
The Benefits and Drawbacks of Conservatorship
The benefits of conservatorship are obvious: it allows people who are unable to make their own life decisions to have those decisions made for them by another party who is more capable of doing so.
However, conservatorship comes with many drawbacks.
The first, and most obvious, drawback is that it is fundamentally a violation of the right to individual autonomy.
In our society, it is a generally accepted legal and social principle that every adult has the right to manage their own affairs and make their own life choices. Conservatorship directly contravenes this principle, and as such, the law does not handle it carelessly. Conservatorship is reserved for those who are substantially impaired in their decision-making capabilities; you can’t just implement a conservatorship for any little thing.
Conservatorship is also a process that has substantial legal oversight. The courts must approve a conservatorship and supervise the process. Generally, courts err on the side of providing the conservatee with as much freedom and autonomy as possible, although of course they do not always do this perfectly. Conservators with financial powers must typically provide the court with regularly updated records of the conservatee’s assets and even post bond with the court. This bond will be partially or fully revoked if the conservator abuses their powers.
Despite these legal safeguards, however, transgressions do occur. Financial abuse, which is a legally recognized form of elder abuse, happens more commonly than many people recognize. So, for that matter, do other types of abuse, including physical abuse, sexual abuse, and neglect (and to conservatees of all ages, not just the elderly). If you have a loved one in a conservatorship, then this is something of which you should be aware.
There are other concerns relating to conservatorship as well. For one, the process can be very costly and time-consuming for everyone involved, but particularly for the conservator. If you are a conservator, you will have to take care of another person’s assets in addition to your own, and report regularly to the court to prove that you are being honest. A good lawyer can make things a lot easier, but conservatorship is never a fun process.
In addition, conservatorship, like other court proceedings, is public. That means that all of the records relating to the conservatorship will be accessible to the general public. Since many people would prefer to keep their financial records private, this will mean that if you value privacy, you may want to consider alternatives to conservatorship.
How Conservatorship Works
Who Can File for Conservatorship?
Typically, close relatives of the conservatee will be allowed to file for conservatorship. The party given first priority will be the spouse of the conservatee; after that will come the conservatee’s adult child(ren), parent(s), and sibling(s).
Nobody can force you to be a conservator, and you have the right to decline conservatorship of a close family member who has become incapacitated. This is an important decision, and you should think carefully before deciding whether to be conservator. Ask yourself: Can I handle such a hefty responsibility? Will I be able to care for my loved one better than the other potential conservators?
If there are no family members who are willing and able to act as conservator, then another entity may undertake to handle the conservatorship. This may be a private professional conservator. Private conservators cost a lot of money, however, and if you cannot afford one, you may be able to seek the services of a public guardian.
The office of public guardian is a government office, generally on the county level. If you are in our home county of Orange County, California, for instance, you may solicit the services of the county’s Office of the Public Guardian.
Different Types of Conservatorships
So far, we’ve been speaking about conservatorships as though they were a monolithic entity, but in fact, there are several different types of conservatorships.
General versus Limited Conservatorships: General conservatorships apply to people who are entirely unable to care for themselves. A limited conservatorship, however, may be instituted for a person with developmental disabilities who has some ability to manage their own affairs. Limited conservatorships do not require the same degree of care by the conservator and may involve more input from the conservatee.
Closely related to the limited conservatorship (although different) is the LPS (Lanterman-Petris-Short) conservatorship, which is permitted by the state of California for adults with mental illnesses.
Conservatorships of the Estate versus Conservatorships of the Person: Conservatorships of the estate involve management of the conservatee’s finances. The conservator must draw up a budget for the conservatee, pay the conservatee’s bills and taxes, and handle all other such financial matters. Conservatorships of the person, however, task the conservator with making day-to-day decisions for the conservatee, including their food, clothing, residence, and medical decisions. A conservatorship may be either of the estate or of the person, or it may be both.
Ending a Conservatorship
Conservatives are usually set up with the expectation that they will continue indefinitely. Of course, nothing is forever, and there are several ways that a conservatorship can end.
The first way that a conservatorship may end is if the conservatee dies. Likewise, if the conservatee runs out of assets, then this will end the conservatorship of an estate (although not of a person).
The conservatorship will not necessarily end if a conservator dies or resigns, although the courts will have to appoint a new conservator.
A conservatorship may also end if the conservatee recovers from their incapacitation and becomes able once again to handle their own affairs. Even then, the conservator or conservatee must petition the court for the conservatorship to end before it can officially be dissolved. In this case, the court’s investigator will review the circumstances of the conservatee’s life and make a determination as to whether they are able to live independently.
How to Avoid Conservatorship
Because of all the complications inherent to a conservatorship, and the potential for abuse, you may feel that it is best to avoid a conservatorship for yourself if possible.
Fortunately, there are a few ways in which you can plan ahead to ensure that you do not become subject to a conservatorship, even if you are one day incapacitated.
Power of Attorney. Creating a power of attorney (POA) is one way to circumvent conservatorship. To create a power of attorney, you must draft a legal document which gives another party the right to act on your behalf should you become incapacitated.
Power of attorney functions similarly to a conservatorship, with the person granted POA essentially acting as a conservator. There is only one difference, but it’s a big difference: you are the one who gets to decide who is given power of attorney. The court and your relatives will not have any power over you.
A POA will take precedence over a conservatorship. The person petitioning to be conservator in court must typically prove that there is no alternative to conservatorship, and a POA provides just such an alternative.
Whether or not you should create a POA depends on your situation. Perhaps you have a spouse or adult child who you know you can count on to manage your affairs wisely and compassionately if you become incapacitated. In this case, you might simply allow them to petition for conservatorship. If, however, you are less trusting of your immediate relatives and you have a specific person in mind to manage your affairs, then you should consider creating a power of attorney.
And remember, no one can predict the future. Let’s say that you are incapacitated in a car accident which kills your spouse, who you were counting on to be conservator, and conservatorship falls to someone (say a sibling) who you trust less. In that case, you might wish you had created a power of attorney planning for such an event!
Trust. A trust provides another alternative to conservatorship. Trusts have many functions related to estate planning, and their ability to provide instructions on how to care for an incapacitated person is one of those functions.
Wills don’t work this way: generally, a will can only take effect after an actual death. However, a revocable trust can allow the successor trustee to begin handling the assets placed in the trust at certain specified times before your death, including in the event of your incapacitation.
In this respect, trusts serve essentially the same purpose as documents granting power of attorney. Trusts have the extra advantage that they can serve other purposes, too, including planning your estate and even protecting your assets. If you want to solve several difficult financial matters at once, including the question of conservatorship, then a trust may be the best way to go.
There is one major catch to both trusts and power of attorney documents: you must plan in advance. Once you are actually incapacitated, it is too late to create a binding POA or trust, because the document must be drafted at a time when you are competent to do so.
That is why the time to start thinking about planning for conservatorship is now. Anyone can become incapacitated at any time, and once you are incapacitated, it is too late to make any decisions. (It’s a bit like asset protection: once you need to protect your assets, it is usually too late to protect your assets.) With this, as with so many other things in law, proactive planning is required.
Trusts and power of attorney documents must also be drafted properly, or else legal issues will emerge and the courts will have to get involved to rectify these issues. That is why it is so essential that you hire the right legal representation to help you draft one of these.
What to Do If You Have Further Questions About Conservatorship
There are many different sides to this equation. Perhaps you are seeking to become a conservator for someone you love, or perhaps you are concerned that a loved one in a conservatorship is being abused. Or perhaps you would like to plan for your own future.
Whichever way you cut it, the issue of conservatorship is fraught with all sorts of challenges. The law is extremely complex, and the emotional investment of all parties involved is always strong. We all want what is best for ourselves and our loved ones, particularly those who may not be able to speak for themselves.
No matter where you stand in a matter of conservatorship, it is absolutely essential that problems are managed smoothly and the well-being of all people involved is taken into account. Conservatees have a right to not be abused and to enjoy as much autonomy as reasonably possible given their circumstances. At the same time, well-meaning conservators must know the law thoroughly so they avoid a misstep.
That is why, if you have any problems related to conservatorship, or if you are looking to draft a trust or power of attorney, you should not hesitate to speak to an experienced conservatorship lawyer.