For so many people, the term “conservatorship” carries with it the idea that it strips all power and dignity from a person. Family members sometimes avoid considering conservatorship because they misunderstand it. While conservatorship is not a process to take lightly, it’s important to understand exactly what it includes before moving forward with it or dismissing it altogether.
Conservatorship might be a good option when arranging care for your parents in the event they become unable to completely care for themselves. But, are there other options? More importantly, how can you know if a conservatorship is the right call when it comes to caring for some of the most important people in your life?
What Is the Difference Between Guardianship and Conservatorship?
Both guardianship and conservatorship are processes that are intended to protect people who cannot make certain decisions for themselves, but they are not the same. Conservatorship is the legal process of the family and probate court appointing a person, called a conservator, to make only financial decisions on behalf of another person, called the protected person. This is different from guardianship, which allows someone to make decisions about personal and healthcare issues.
In a conservatorship, the protected person is determined to no longer be able to make certain financial decisions, which might include the distribution of their finances and assets. In the event that a person becomes unable to manage their finances, such as because of age-related cognitive decline or illness, and has no durable powers of attorney, a conservatorship may be necessary to protect them from harm.
A adult child’s conservator duties may include:
- Managing their parents’ assets, such as investments or real estate
- Acquiring necessary items directly or providing the funds to do so
- Paying for their parents’ placement in a facility when more care is needed
- Paying their parents’ bills and taxes, including their medical bills (but not making medical decisions for them)
- Managing their property by paying for insurance, rent or mortgages, or by hiring a property management company
- Providing spending money as determined by the conservatorship arrangement, such as an allowance
- Including their parents in business or financial decision-making as determined by the conservatorship limitations
Conservatorship is a removal of a person’s legal ability to make certain decisions for themselves. So, how do you know when this might be in your parents’ best interests?
When Should I Consider Conservatorship for My Parents?
You might be considering conservatorship if you have seen evidence that your parents’ financial decision-making is impacting their ability to stay in their home, access the care they need or is otherwise causing them harm.
Sometimes, with advanced age comes the risk of making financial decisions that impact health and quality of life, such as:
- Forgetting to pay mortgage, rent or utility bills
- Forgetting to pay for medications or home health care needs
- Overspending to a degree that necessary expenses cannot be covered
- Neglecting to deposit income, such as Social Security checks
- Extending lines of credit to untrustworthy acquaintances
- Falling victim to financial scams and fraudulent sales tactics
How likely are your parents to fall victim to a fraudster? One New York study showed that one in four adults over the age of 60 — and this is without documented cognitive decline — fell victim to scammers, resulting in financial loss. While everyone is at risk of being scammed at any age, with more advanced age comes a higher risk of health issues that may impact your parents’ ability to manage their own finances without support, whether it’s from scammers or just day-to-day finances.
Before conservatorship ever becomes necessary, there may be alternatives to helping your parents maintain their autonomy while protecting them from financial exploitation or other harms:
- Engaging in supported decision-making
- Creating joint bank accounts for you and your parents
- Setting up electronic bill pay and direct deposits
- Drawing up trusts with your parents as the beneficiaries
- Assigning representative payees for government income
- Establishing durable powers of attorney
Sometimes, it’s more clear-cut that conservatorship may be necessary. In the case of a comatose parent, advanced Alzheimer’s or dementia, or another serious illness, your parents will be unable to make the necessary financial decisions for themselves. If there are no other safeguards in place, such as a durable power of attorney, taking steps toward conservatorship may be necessary.
Unfortunately, deciding when a conservatorship is the right choice for your parents is not always an easy call. While you no doubt have your parents’ best interest in mind, it is worth considering the toll that conservatorship can take on you, as well. Petitioning for a conservatorship is a time-consuming process, and many people simply don’t have the time or energy for the complicated legal legwork it takes to establish and maintain a conservatorship.
How Does Conservatorship Work?
The first step in establishing conservatorship is to file a petition with the Massachusetts Probate and Family Court. The court prefers to keep people’s ability to manage their own finances within their own control as much as possible. So, your burden will be showing both that your parents are incapable of managing their finances and that you are. The documents you submit will include:
- The initial Petition for Appointment of Conservator
- A Medical Certificate providing documentation of the individual’s functioning and decision-making abilities
Conservatorships do not always mean complete control over your parents’ finances, and powers may be limited to specific duties. When possible, the court prefers the protected person — at the very least — participate in decisions about their business and finances. The probate court will specify in the arrangement what the conservator is responsible for managing and which rights the protected person will keep, such as:
- Spending a predetermined amount of money freely
- Planning their own budget and direct expenditures
- Making donations to charities
- Gifting funds to family and friends
- Establishing and using available credit lines
- Deciding when to sell or buy property or other assets
- Participating in the operation of a business
If the conservatorship is granted, you will have 90 days to submit an inventory to the court of the protected person’s assets, which will include:
- Bank accounts
- Stocks and bonds
- Mutual funds
- Retirement accounts
- Life insurance
- Motor vehicles
- Tangible personal property
- Real estate
The court wants to make sure that the protected person is truly being protected, so you will also be required to file annual accounting documents over the duration of the conservatorship.
Are Conservatorships Permanent?
Conservatorships fall into three categories:
- Single transaction
A temporary conservatorship lasts for 90 days — and may be extended for an additional 90 days, if needed. A permanent conservatorship lasts until the protected person’s death or until it is revoked by a judge. For elderly people whose incapacitation is the result of cognitive decline or impaired physical health, conservatorship is usually permanent. A conservator may petition to resign, but this does not remove the order that the protected person needs a conservator.
How Can An Estate Planning Attorney Help with Conservatorship?
Attorneys generally have the same goal you do when it comes to caring for your parents — finding the least restrictive way to protect their financial interest to ensure their quality of life. Speaking with an estate planning lawyer as soon as you start to suspect there may be an issue — or before — means you may be able to include your parents in the process and perhaps even avoid conservatorship altogether.
You may have other options for providing the best support to your aging parents, and while the decision is always in your hands, getting information from an attorney experienced in elder law is an important tool in helping you move forward. Should conservatorship turn out to be your best option, an experienced attorney can help you through the process of petitioning and even throughout the duration of the conservatorship.
Contact The Law Offices of Kimberly Butler Rainen today to schedule your consultation, and let us help you find the best solution for your family.