What Is Elderly Guardianship and Conservatorship?
Securing care for your loved oneBy Canaan Suitt, J.D. | Last updated on January 19, 2023
Use these links to jump to different sections:
- What Is a State-Appointed Guardian?
- What Does a Legal Guardian Do?
- Conservatorship vs. Guardianship
- Who Can Be a Legal Guardian?
- How To Get Guardianship of an Elderly Parent
- Questions for an Elder Law Attorney
A guardian or conservator is a court-appointed individual who takes care of the personal affairs of an older adult who has become incapable of caring for themselves.
As Virginia elder law attorney Ann McGee Green says, “Guardianships and conservatorships are ways that a court gets involved in our lives by making someone have legal authority over our financial or personal decisions.”
Getting a court-appointed guardian or conservator is vital when there is no durable power of attorney to oversee the well-being of an older person who has become incapacitated.
What’s the difference between a power of attorney and a guardian? While a court appoints a guardian, the individual appoints a durable power of attorney (POA).
There are a couple of types of POA:
- A healthcare power of attorney has the legal authority to make medical decisions on behalf of an incapacitated adult.
- A financial power of attorney handles financial affairs on behalf of an incapacitated adult.
Both POAs and guardians:
- Have decision-making authority that lasts as long as the incapacitated person is alive
- Have a fiduciary duty to represent the best interests of the incapacitated person
You can think of a guardian’s role as similar to that of a healthcare POA in handling medical decisions, while a conservator’s role is more like that of a financial POA in handling financial decisions. In some states, the roles are combined.
“In Virginia and many other states, guardianships are for personal care decisions, including medical and residence decisions. Conservatorships, on the other hand, are typically for financial decisions,” explains Green. To complicate matters, some states call conservators “guardians of the estate,” adds Green.
It’s important to note that guardians and POAs “don’t have to have total control over decisions – their authority may be limited in scope.”
Suppose you have a loved one who has become incapable of caring for themselves, and they have not appointed a durable power of attorney. In that case, you will need to obtain a guardianship or conservatorship order from your local court. This article will cover the basic process.
Once you understand the basics, it’s essential to speak with an experienced elder law attorney in your area. Laws and requirements vary by jurisdiction, and an elder law attorney licensed to practice law in your state will ensure that all requirements are satisfied.
What Is a State-Appointed Guardian?
A guardian is a person appointed by a court to take care of someone who is unable to take care of themselves.
There are different kinds of guardianships. For example, testamentary guardianships care for minor children whose parents have died. A testamentary guardian provides for the child’s needs until the child becomes an adult (18 years old).
An elderly guardianship is for the care of older adults who have become incapacitated. Incapacitation may result from one of the following:
- Alzheimer’s disease and other types of dementia
- Cognitive impairments
- Mental illness
Incapacitated individuals cannot take care of themselves and need the assistance of someone in their day-to-day life.
What Does a Legal Guardian Do?
A guardian has many responsibilities related to the personal care of an older adult.
Some of the primary duties of a guardian include:
- Plan where the person will live (for example, assisted living or nursing home care)
- Make sure that the person is healthy and receives appropriate medical care
- Make financial decisions on behalf of the person
Conservatorship vs. Guardianship
As mentioned above, the terms “guardianship” and “conservatorship” are sometimes used interchangeably. However, a guardian and conservator may be different depending on the state you live in.
In states where the roles are distinct, a guardian will take care of a person’s personal needs and day-to-day living requirements. This includes where the person will live, the medical care they receive, and the social activities they participate in.
A conservator oversees the incapacitated person’s financial affairs, ensuring that the person has a budget that fits their financial situation and is receiving benefits.
In some states, the two roles are combined in one person who takes care of both personal and financial matters. When seeking a guardian or conservator for a loved one, it’s essential to understand the roles in your state and the requirements for them.
Who Can Be a Legal Guardian?
Several people can petition the court to appoint a guardian:
- The person who needs a guardian
- Family members of the person who needs a guardian (for example, spouses, partners, and adult children)
- State or local government officials
Deciding who the guardian will be is part of the process of petitioning the court. Sometimes, the guardian will be the person who petitioned the court – for example, an adult child of the incapacitated individual. Other times, the guardian will be a third party.
How To Get Guardianship of an Elderly Parent
Getting a guardian is a court-administered process. Rules vary, and the process for getting a guardianship differs from state to state. However, the general process involves the following steps:
- Submit a petition for the appointment of a guardian or conservator
- Provide the court information about the incapacitated adult, their situation, and family members
- Explain why a guardianship is necessary
- Explain that there are no viable alternatives to a guardianship
- Allow court-appointed officials to do an investigation establishing that a guardianship is needed
- Attend a court hearing where the judge reviews the petition, considers evidence, determines whether the person lacks capacity, and makes a decision about whether to grant the petition for guardianship
If the judge agrees to grant the petition for guardianship, it’s called court approval.
Questions for an Elder Law Attorney
“There are people who hold themselves up as elder law attorneys but don’t necessarily know about all the areas in elder law,” says Green. “For example, if I were going to an attorney and I was looking specifically for help with Medicaid or long-term care, I would ask them how many applications they have assisted clients with and how many of them were successful. How much of their practice is devoted to these issues?”
“Different lawyers have very different knowledge bases,” says Green, so you want to ask questions to ensure you have the right attorney.
To get the most out of a consultation with an elder law attorney, ask informed questions such as:
- What are your attorney’s fees and billing options?
- What legal services do you offer (for example, estate planning)
- Are guardianships and conservatorships different in my state, and which do I need?
- What is the process for getting guardianship?
- Am I qualified to serve as a guardian?
- What are the responsibilities of a guardian?
- How long do a guardian’s responsibilities last?
- How much does it cost to get guardianship?
Once you have met with a lawyer and have your questions answered, you can begin an attorney-client relationship.
Look for an elder law attorney in the Super Lawyers directory for legal help getting a guardianship or conservatorship.
Additional Elder Law articles
- What is Elder Law?
- How To Ensure Legal Protection for a Parent With Dementia
- What Is Elderly Financial Abuse?
- What Does a Medicaid Planning Attorney Do?
- How Do You Become Eligible for Social Security Benefits?
- How Much Does It Cost To Get a Nursing Home Abuse Attorney?
- Medical Power of Attorney and Advance Directives
- What Is Elder Law vs. Estate Planning?
- The Law and Aging in America
- Redressing the Effects of Elder Abuse Through Litigation
State Elder Law articles
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