Guardianships & Conservatorships
Guardianship Defined: to have legal custody and responsibility for the safety, care, and well being of another person. Guardianships are required for persons who do not have the ability to take care of themselves such as: small children, handicapped persons, or the elderly whom are vulnerable or suffering from the effects of dementia or Alzheimer’s disease.
Conservatorship Defined: to take care of the property (land and personal property) which belongs to another person. Conservatorships are required for persons who are not able to safeguard, control, and/or manage their own property. Again these can be the same people whom are affected by a guardianship above, namely: small children, handicapped persons, or the elderly whom are vulnerable or suffering from the effects of dementia or Alzheimer’s disease.
Thus, it is often the case that when a guardianship is established over someone, a conservatorship is also established at the same time. In this way, every aspect of care (person and property) has been safeguarded with one single action (Court Action) for the vulnerable person.
While the typical reasons for a Guardianship and Conservatorship were spelled out above, there are also some more rare instances in which they are necessary as well:
(1) The Handicapped or Physically Disabled. When a child is born to its parents, the parents are legally responsible for the child until it turns 18 years of age. However, when a child is born handicapped or with other mental and/or physical disabilities, that child’s parents often become the child’s caretaker for the rest of their life.
In these instances, when the child turns the age of majority (18 years of age) the parents must then Petition the Court for an order allowing them to continue to assume control of their child and their for the indefinite future. The main reason this is necessary is because when a person turns 18 years of age society at large believes that they become responsible for themselves and their own actions.
However, while everyone realizes that is not often not the case for Handicapped or Physically Disabled persons, after the child turns 18, when a parent applies to renew the child’s government benefits, takes the child to the doctor, or tries to do anything “official” for the child- most government agencies will deny the parents this right because their child is now an adult; and responsible for their own actions. Thus, Court intervention is required in the form of a Guardianship and Conservatorship.
(2) Dementia and Alzheimer’s. When an parent begins to suffer from severe mental disabilities, it is often the case that someone is required to begin taking care of the parent so that they do not hurt either themselves or someone else; or in rare instances get taken advantage of. These caretakers more often than not are the children of the parents. This situation is often a strange turn of events for children to be taking care of their parents instead of the opposite. More and more now in our society these situations are becoming much more common as parents live to be older and begin requiring additional care; and more often than not, a guardianship and conservator ship becomes necessary.
Typically, before a guardianship and a conservatorship is established, parents will assign Power of Attorney to their child or someone else to authorize certain actions to be taken on their behalf. However, Power of Attorney is generally considered a short term “fix” for a temporary situation. When a person begins to require more extensive care or the caretaker begins interfacing with more agencies than simply local utility companies, local banks, and local doctors, sometimes these “non-local” entities may simply state that the Power of Attorney is not accepted and either the parent themselves needs to handle that action or a court appointed agent. A court appointed agent is a fancy title for a guardian and conservator.
In my experience, the agencies which most often “draw the line” and demand a court appointed agent are: medicare, social security, large investment companies, and even at times local medical providers. Another time of occurrence for the demand of a court appointed agent is before a surgery; either major or minor. before a doctor is going to perform any type of surgery on another person, they are going to make certain that whomever is authorizing the surgery has the authority to do so.
Can you imagine the complications if a person knew that a guardianship and conservatorship was beginning to be necessary for their parents, but instead continued to put off getting it done and then an accident happened? And now mom or dad needs surgery – quickly?
While emergency Guardianships and Conservatorships are possible and Attorney Brendon R. Rogers has handled many successfully, “an ounce of prevention is really worth a pound of care” in these instances and having the guardianship in place well ahead of time is ALWAYS recommended. The overall process is relatively straightforward and with Attorney Rogers help can often be completed from beginning to end in just 4-6 weeks.
(3) Physical Disability. When an parent begins to suffer from physical disabilities due to age, or if they have suffered a severe injury such as a broken hip, leg, etc., a guardianship and/or conservatorship may be necessary due to their limited ability to get around and take care of their necessary affairs. The need for a Guardianship and/or Conservatorship due to a Physical Disability is often the exception to the rule, but Attorney Rogers has handled them for that reason as well.
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Working with an attorney experienced in these areas of law ahead of time is often the key to avoiding complicated problems later on. As Attorney Brendon R. Rogers handles Estate Planning, Elder Law, Trust Creation, and the drafting of Power of Attorney in his office, he often encourages couples to come in ahead of time to plan for their own estates and answer all of these hypothetical situations now while they are in control.
For example, in his Durable Power of Attorney document, Attorney Rogers has a provision which addresses the need for a Guardian and Conservator. The provision actually informs the Court that in the event that a Guardianship and/or Conservatorship becomes necessary for YOU, that you have already designated the exact persons that You would want appointed to make those decisions for you. That is peace of mind.
In addition, when a family properly prepares their Revocable Trust ahead of time with the help of an experienced attorney, the Trust will outline in great detail their exact desires and instructions regarding their personal property,land, houses, vehicles, bank accounts, and investments. Then, in the event that the person begins to suffer from dementia, Alzheimer’s, or any other illness or disability and a guardianship and/or conservatorship becomes necessary, exact guidelines regarding the persons property have already been set forth in Trust. This means that even though a person is now being cared for under someone else’s control, their property is essentially “locked up” under specific guidelines and controls and it cannot be squandered or wasted by anyone.
Therefore, having an experienced attorney involved in a persons estate plan from the beginning is often the best decision to make. Handling the affairs early and answering the tough questions ahead of time before it is necessary will make the end process much easier and provide much peace of mind. Which is probably why most of Attorney Rogers clients have stated that their only regret was that they did not get it done sooner as it was not as hard and complicated as they thought that it would be.