If there is no power of attorney, or if it is inadequate (or not accepted by the necessary people or businesses or other entities), it may be necessary to establish a conservatorship. A conservatorship grants a person known as a conservator the power to handle most or all of a protected person’s business. There are some limitations, and certain actions can be taken by a conservator only after a court grants specific authority, often after there has been an opportunity for various people, including the protected person, to object. For example, court authority is often required before a conservator may sell the home of a protected person.
A conservator must also make public filings in court at least once a year, accounting for property of the conservatorship, and reporting on actions and changes of circumstances over the past year.
In order for there to be a conservatorship, the court must find that a person is financially incapable and has property that is in need of protection.
Similarly, if a person is mentally incapacitated, and is unable to safely live on his or her own or make his or her own decisions, a guardianship can be ordered. As with a conservatorship, this requires a court finding that a person is incapacitated, and, as with a conservatorship, annual reports to the court are required.
In an emergency situation, a temporary guardianship and/or a temporary conservatorship can be requested at short notice.
Opposing a Guardianship or Conservatorship
A person can object to having a guardianship and/or a conservatorship imposed. People with standing to object include various relatives and other people, as well as the individual himself or herself.
People who wish to oppose a guardianship or conservatorship can be represented by lawyers. This is true both for interested persons who seek to intervene, and for the protected person or respondent himself or herself if he or she wishes to challenge the protective proceeding.
In some cases, if some protection is needed, but a person is not completely incapacitated or financially incapable, an accommodation can be reached that adequately protects the person’s health and property, while allowing the individual a degree of self determination, and restricting the guardian and/or conservator in ways that a court may find to be appropriate.
Pre-Selecting Guardian or Conservator
Sometimes someone has reason to wish that a particular person either should serve as a guardian and/or conservator if needed, or to wish that a particular person never serve in that capacity. Examples of the first situation include situations where a person would like an unmarried partner or a close friend or neighbor, or even a professional fiduciary, to take over if there is ever a need. Examples of the second situation include situations where there is a child or other close relative who has a poor track record, or with whom there has been a falling out.
In situations of this kind, a Nomination of Guardian and/or Conservator can be very useful.
NOTE: The above are only some of the times that one can benefit from legal advice from a person who is well versed in elder law matters, guardianships and conservatorships, Advance Directives for Health Care, power of attorney issues, similar matters. The above should not be considered legal advice, nor should it be taken as a statement of the only time that one might benefit from consulting a legal or other professional.