The population of elderly citizens continues to increase in the U.S. Thanks to advances in medical technology and newly-developed drugs, early diagnosis and better treatments delay or reduce the debilitating diseases that destroy cognitive function. New concepts in residential living, such as assisted living facilities and communities for the elderly, have made it possible for many more seniors to live better quality lives.
Unfortunately, there may come a time when an elderly loved one or friend can no longer manage his or her financial and personal affairs. All too often, seniors neglect to take care of legal matters concerning estate issues, finances, and health decisions. Family members or friends are put in the difficult position of deciding who must deal with the elderly person's affairs. One or more persons may step forward and file a petition for conservatorship.
What is a Conservatorship?
As it applies to persons of advanced age, a conservatorship takes away a person’s basic rights to freedom of choice by removing the elderly person's power to make financial and personal care decisions.
There are two types of conservatorships:
- Probate. The petition can be filed by an adult child, relative, or person outside the family. The court decides the extent of the conservator's power.
- LPS (Lanterman, Petris, Short Act). Designed for people with serious mental disorders or who may be mentally impaired by drug or alcohol addiction. Family and friends are not allowed to submit a petition as conservator.
The Process of Conservatorship – Taking Away an Elderly Person's Rights
A person who is elderly and diagnosed as mentally incompetent risks losing basic rights when no prior legal arrangements have been made regarding financial affairs and healthcare decisions. In the event there is no prior legal documentation, a family member or friend can step in and seek conservatorship.
The Web site, Family Caregiver Alliance, explains conservatorship in the article, "Work and Eldercare" (no author provided), by stating, "A conservatorship provides the legal authority to manage a person’s finances, estate, personal affairs, assets and medical care. In order to obtain a conservatorship, a friend, family member or public official must petition the court with facts about why the individual can no longer manage financial or personal affairs."
Alternatives to Conservatorship
Persons of advanced age who are still mentally competent are strongly urged to complete a durable power of attorney (DPA) and a durable power of attorney for healthcare (DPAHC). By signing these documents, the elderly person gives a designated individual (of his or her own choosing) authority to make important legal decisions on his or her behalf.
The designated individual can only make legal decisions after the elderly person is found to be incapable – or incompetent – of managing financial matters and healthcare decisions.
To learn more about DPA and DPAHC procedures, consult an attorney experienced in matters specific to elderly persons (i.e. Medicaid, Social Security, Wills, estates, geriatric issues).
There are several ways to locate an attorney:
- County Bar Association
- Legal Aid office
- Recommendation from a friend or relative
- Senior support groups
- Phone Book (Attorneys are listed in alphabetical order and according to specialty in the yellow pages)
Other alternatives to conservatorship:
- A court-appointed "Representative Payee" to manage Social Security Benefits
- Joint management of bank accounts and other legal securities
- Setting up joint ownership of assets
The elderly person should be warned that allowing the wrong person to jointly manage personal affairs may prove disastrous.
The Process of Designating a Conservator
Designation of a conservator is made by a judge at a hearing process. The details are complex when one is appointed to manage another person's affairs and is given the power to make healthcare decisions. Petitioners should know that any decisions made on behalf of the elderly client are court supervised. According to information provided in the same Family Caregiver Alliance article, the conservatee's (elderly client's) assets and income become part of the public record.
A person appointed as conservator of an elderly person's or family member's estate must file an inventory of the conservatee's property. The petitioner must keep records and submit evidence of all transactions. And finally, the cost of the entire legal procedure may be quite expensive.
A discussion of an elderly individual's affairs may be difficult for the family to endure. However, the consequences of not settling certain health and financial matters while the elderly loved one is still competent can result in costly and stressful court litigation later on.
The elderly person who currently is able to manage his or her health and financial matters has the power to avoid conservatorship. Most people would prefer to avoid petitioning for conservatorship, using it only as a last resort. The strongest option to protect one's basic rights is to complete the DPA and DPAHC forms. Acting before it's too late ensures peace of mind.
Mary King - Mary King is a Suite101 Topic Editor for the Caregiver Support and Home Management sections. She has authored 5 teen-based novels.
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