Many of us pitch in to provide some extra TLC for elderly parents, adult relatives, or friends. But there’s checking in with some chicken noodle soup and then there’s a whole different level of care. Think: Dressing. Bathing. Feeding. Managing activities of daily living. Tackling money matters.
If someone in your life needs more than basic support, it might be time to consider guardianship or conservatorship. A guardian has legal authority over another individual’s life, including big choices such as where to live, as well as the nitty gritty details. A conservator has legal authority over another individual’s finances, which may include decisions about how money should be spent, saved, or invested. If the court decides to appoint a guardian or conservator for an incapacitated person, the incapacitated person is legally known as a “ward.” You may already be functioning as a guardian or conservator for all intents and purposes, but formalizing the process makes everything a whole lot easier. (For one thing, it makes sure you don’t end up in the slammer for stealing from Grandma when you’re just trying to make sure she pays her taxes.)
Is this for me?
Wondering if someone in your life qualifies for a guardianship or conservatorship? There’s no ironclad threshold, and every case is up to the courts. But here’s a litmus test that we at Johnson/Turner Legal often use: Imagine this person needs a new place to live. Is he or she theoretically capable of conducting an apartment search as well as reading and understanding a lease? If the answer is yes, a guardianship or conservatorship might not be appropriate at this time. There are less restrictive alternatives that still provide a measure of support, guidance, and protection. These vary based on specific needs but could include appointing a Power of Attorney or representative payee, or drafting a health care directive.
If, however, the answer is no, you might want to consider a formal guardianship or conservatorship. Disclaimer: You might be picturing your 19-year-old son whose life skills appear to be limited to video games, creating dirty laundry, and general debauchery. And indeed, he might not make a wise decision in securing a residence. As much as you may want to formally take over his life, disagreeing with someone’s choices doesn’t usually warrant legal guardianship/conservatorship. In most scenarios involving guardianship/conservatorships of adults, the ward is elderly, suffers from dementia, or is incapacitated due to serious injury or illness. In other situations, someone might need or want a conservatorship if a crippling addiction threatens basic livelihood (such as chronic gambling).
What to expect
Overwhelmed by the prospect of taking over guardianship/conservatorship duties? Don’t be. Becoming a legal guardian or conservator doesn’t mean that you need to drop everything and turn into a full-time caregiver. It simply gives you legal oversight. You can outsource any and all care-related tasks—and that doesn’t mean you love the person any less.
From a legal perspective, setting up a guardianship or conservatorship is relatively straightforward. You can expect an initial consultation followed by a pile of paperwork (don’t panic, a good attorney takes care of the paperwork on your behalf). You’ll have a hearing scheduled in approximately 60 days to formalize the appointment. If it’s an emergency scenario, such as a traumatic injury, a court can expedite the appointment process. If someone contests the appointment (perhaps you and your estranged sister both want to be your dad’s guardian), the court will evaluate all input and make recommendations based on the best interests of the ward.
In most cases, a guardianship and conservatorship are appointed simultaneously, though some scenarios only call for one or the other. The guardian and conservator do not have to be the same person.
Sometimes, a ward only requires temporary guardianship or conservatorships. While guardianships and conservatorships are created to be indefinite, a ward can file a “Petition for Restoration of Capacity” when he or she feels that the appointment is no longer needed. A court will review the request and make a determination. Every guardianship/conservatorship is revisited once per year via annual reporting to ensure that everything’s going well.
Caregiving is a noble—and often exhausting—task. If you’re facing a caregiving scenario, we encourage you to seek support, guidance, and legal protection. At Johnson/Turner Legal, we provide conservatorship/guardianship services on a flat-fee basis, so there are no surprises. We also take the paperwork off your plate. Because when there’s no paperwork on the plate, there’s more room for chicken soup.