Critical Points on How Adult Guardianships (Conservatorships) Work

Long Island, NY Adult Guardianship Lawyers

Elderly Parent and Adult Child's handsConservatorship and guardianship are essentially the same, and you may notice that they are used synonymously in the courts. Most estate attorneys will refer to guardianship (of adults) as conservatorship.

Conservatorship occurs when adults cannot make important decisions for themselves; therefore, they appoint a person (known as the conservator) to make decisions for them. These decisions are legally backed by the court. A conservator can be appointed by the individual, a family member, or even the court. This individual can make decisions about finances, medical decisions, and personal care.

When appointed, a conservator can make decisions about all aspects of a person’s personal life (depending on the documentation). For example, a conservator could determine where the individual lives.

Assessing the Pros and Cons of Conservatorship

There are pros and cons to creating a conservatorship, and you will want to consider each before deciding if it is right for you or your loved one.

Some advantages include:

  • It allows family members to make decisions on behalf of another.
  • It gives a clear, legal authority to deal with third parties on behalf of the individual.
  • It provides a process for a judge to approve all major decisions (when needed).

Some disadvantages include:

  • They can be costly at first.
  • You will need to meet with an attorney and continue to, in order to keep it updated.
  • Family members may disagree about which family member should be the conservator.

When is a Conservatorship Ideal?

There must be two factors present for a conservatorship to be appropriate. First, the individual must be physically or mentally incapable of making decisions themselves. Second, the individual must not have an estate plan in place (such as a living will) that designates a power of attorney to cover all medical and financial decisions.

Some situations in which a conservator may be necessary include:

  1. The individual does not have a power of attorney for finances.
  2. The individual does not have a medical directive (or living will); therefore, he or she needs someone to make healthcare decisions.
  3. The individual has a medical directive, but needs someone to make medical decisions that are not covered in the medical directive.
  4. The individual has a power of attorney for health and finances, but he or she needs someone to make decisions regarding personal life (e.g., where they would live, who can spend time with them, etc.).

A Judge May Have to Decide

Often, when a person becomes incapacitated, that is when the family members realize that they need to appoint a conservator. In these instances, a judge would have to appoint an individual – especially if the principal cannot appoint someone themselves. Some situations where this may occur can include if the person is unconscious or semi-conscious, suffers from Alzheimer’s Disease or dementia, etc.

In this instance, the judge would weigh the options and determine if the individual can communicate, and if he or she understands the court’s procedures enough to appoint someone on his or her own. The judge will then have a preliminary investigation done to see if a conservator is required. Lastly, the judge would appoint a conservator, but may limit the authority to specific decisions (based on if there is a living will or power of attorney present).

Contact an Estate Planning Attorney in Long Island, NY First

If you have a loved one who needs decisions to be made on his or her behalf, explore your options by contacting an elder law attorney. Conservatorships are complex, and your case must meet specific criteria in order to appoint someone or petition the courts to petition someone. Contact the Law Office of Andrew M. Lamkin, P.C. at 516-605-0625 or request more information online.

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