Understanding the Duties of Guardianship

Understanding the Duties of Guardianship

As your parent ages, there may come a time when you must take on guardianship for your parent, accepting legal responsibility for their care and wellbeing. The duties include a parent’s daily care, medical care, and possibly financial decisions made on their behalf. Many guardians are family members who were previously caregivers, now cast into a formal legal role. At the same time, some are professional guardians appointed to circumvent well-established family conflict and disagreement problems. Becoming a guardian requires a court hearing and medical provider confirmation of incapacity of the proposed ward. In legal terms, a ward is either a minor or an incapacitated adult under the protection of a legal guardian. Incapacity can include cognitive decline, dementia, brain injuries, prescription drug impairment, inability to perform daily living activities, or other severe health conditions.

Sometimes an aging parent may disagree that they need a guardian, leading to contested guardianship hearings. There may also be disagreement as to the proposed guardian. A variety of concerns are often expressed during a contested hearing where family members may not agree due to longstanding relationship issues. A contested hearing can become costly, with family members opposing guardianship becoming responsible for their legal expenses. In such cases, a professional guardian is preferable to settling issues between a family where conflict is the norm. Before guardianship is granted, documentation of cognitive impairment like dementia or physical incapacity precluding a parent from making good decisions about their care must be presented to the court. This documentation substantiates the degree of parental impairment as evidence for the guardianship petition. A medical assessment, including a neuropsychological evaluation, provides additional proof for the need for guardianship.

Understanding the Role of a Conservator

In most cases, when a guardian is appointed, so is a conservator. The conservator’s responsibility is to manage property and money. Some family members act as a guardian and conservators, but this is disallowed when a professional is appointed as professional oversight requires a system of checks and balances. A court-appointed family member guardian and conservator is assumed to act in the best interest of their family member. If there are enough funds available, a guardian can hire caregiving help, provide different therapies, or utilize adult daycare. A conservator’s responsibility to manage funds in the best interest of the aging parent should dovetail with the guardian’s goals, and in no way should these funds be conserved to guarantee adult children an inheritance. Guardianships differ from state to state, including the terminology used for guardians and conservators. Some states have an office of public guardianship that accepts cases from low-income individuals and some private clients. Just as in estate planning, probate attorneys, and elder law, it is crucial to retain an attorney specializing in the area of guardianship and conservatorship.

Understanding the Process of Guardianship

The process can be long and complex, particularly in the case of an aging parent, as they will lose fundamental rights having their care entrusted to another person. A general discussion between the aging parent or older person and their relatives as to why guardianship is the best way forward is a good place to begin. The legal process starts with filing a petition for the appointment of guardian or conservator form. This form includes information about the proposed ward and their relatives, the person submitting the request, the reason guardianship is necessary, and an explanation for why alternatives to guardianship are either not available or appropriate. A court investigation commences determining if there is a need for guardianship. If warranted, a court hearing is scheduled where the judge reviews the petition, listens to statements, and determines whether or not to grant the guardianship petition. Every court-appointed guardian is entitled to reasonable compensation for their services. Often when a guardian is a spouse, family member, or close friend, they will waive any payment. In the case of a private or public guardian, the individual is paid directly from the ward’s estate.

An aging parent’s ability to accept the idea of guardianship on their behalf is an admission that they cannot maintain their independence. It is best to be very clear about the process and not mislead them or create unnecessary stress by not fully understanding all involved. Retaining an attorney specializing in guardianship and conservatorship can protect the process from missteps and make it a smoother transition for all parties involved. If you need assistance or would like to talk about your specific situation, contact our Cincinnati office at (513) 815-7006.

What We Can Learn From Britney Spears Conservatorship

What We Can Learn From Britney Spears Conservatorship

A conservator is appointed by the court to care for and protect a person who is deemed unable to care for themselves. Among the conservator’s responsibilities are managing the conservatee’s health and wellbeing as well as preserving their assets. While most people’s lifestyles and fortunes are decidedly different from Ms. Spear’s, the problems she has and continues to experience are a cautionary tale for all of us who do not name a durable power of attorney for healthcare and financial matters. In the absence of these legal documents reflecting your wishes should you become incapacitated, family members may petition a court to appoint a conservator to manage your well-being. Yet, in Britney Spear’s case, some who are under the direction of a conservatorship have no desire to be there.

What Does Conservatorship Determine?

Generally, conservatorships guide the life decisions of those in comas, suffer advanced forms of dementia, or are experiencing other serious injuries or illnesses. A “conservator of the estate” guides financial matters while a “conservator of the person” is in charge of personal and medical decisions. In the case of Ms. Spears, two people (her father and her lawyer, who has since resigned) are acting as conservators, and financial institutions and other attorneys have involvement. One person may be in charge of both estate and personal/medical conservatorships in less complex circumstances. Both types of conservators follow court supervision and are held accountable to that court.

This court supervision acts as a power safeguard preventing conservators from mismanaging property or otherwise taking advantage of those in a conservatorship. Periodic detailing of conservator actions through reports to the court provides this oversight. Frequently, courts will require the conservator to seek permission before making major decisions such as terminating life-support or requiring medications (in the case of medical and personal conservatorships), or selling real estate or other property (in the case of a financial conservator). Additionally, a financial conservator must often post a bond as an insurance policy protecting the conservatee’s estate from mismanagement.

What Issues can Arise with Conservatorship?

Britney Spears states that her conservators are unnecessary. They refuse her permission to marry and have more children while financially forcing her to pay exorbitant conservatorship and legal fees and take psychiatric medications she does not want to take. She also states that she was required to use a court-appointed attorney who did not communicate how to end her conservatorship or hire an attorney she believes has her best interest at heart.

Some conservatorships work remarkably well because the conservator is competent and trustworthy. Yet conservatorships are most often expensive and can be avoided by adequately preparing durable powers of attorney before a physical or mental health crisis occurs. These legal documents provide a template for decision-making based on your wishes by the designated power of attorney(s). In the absence of these documents, the court will most often appoint a conservator who is a relative that is available to serve, such as a spouse or adult child.

Sometimes this situation leads to great heartache when an estranged relative, like Britney Spears father Jamie, is given the reins as conservator and will not let go. Given that Ms. Spears has a multi-million dollar estate, the court believes additional professionals acting on Britney’s behalf through the conservatorship are suitable. Ms. Spears contends that after a thirteen-year conservatorship, the conservatorship should be dissolved as she is stable, can work, and provide for her family.

A conservator will act until the court issues an order ending this responsibility which usually follows:

  • The conservatee’s death
  • The conservatee no longer requires this level of assistance
  • In the case of a financial conservatorship, the assets are all spent
  • The conservator can no longer handle the responsibilities or resigns
  • The court removes the conservatorship due to a successful legal challenge by the conservatee

The process is simple to avoid an unwanted conservatorship. Meet with an elder law attorney to draft your durable power of attorney documents to reflect your wishes should unforeseen physical or mental health illness befall you. Your chosen representatives will be those you trust to exercise your will if you are unable, and you will have peace of mind knowing that future decisions will reflect your wishes. If you need assistance or would like to talk about your specific situation, contact our Cincinnati office at (513) 815-7006.