Court Appoints the Best Qualified Person to Make a Senior's Decisions
When the person you care for slips into a coma, becomes lost in Alzheimer's disease or is otherwise incapacitated by serious illness, you may need to go to court to get yourself or someone else appointed to make financial, legal and health care decisions. This appointee is called a conservator/guardian, and the legal proceedings are called conservatorship/guardianship hearings.
The courts recognize two types of conservatorship/guardianship:
Conservatorship/guardianship of the person. This allows a conservator/guardian to select medical treatments, choose the proper place for the senior to live, decide whether the senior can vote or marry, and make other choices about the person's physical and emotional welfare.
Conservatorship/guardianship of the property. This puts a conservator/guardian in charge of money, bank accounts, investments, homes and other real estate - all assets owned by the incapacitated senior. Part of the job is making sure seniors receive all the financial benefits to which they are entitled, such as Social Security, Supplemental Security Income, Medicare, Medicaid, disability, insurance and pensions.
Terminology can vary from state to state. In some jurisdictions, conservator refers to the person who manages property and finances, while someone appointed to make health care and personal decisions, such as whether the elder should move to an assisted living facility, is called a guardian. In many states, the two terms are used interchangeably. Often one person fulfills both roles, but sometimes the court divides the responsibility among several people.
You can't take care of an incapacitated senior if you don't have the legal power to make decisions - to pay bills, for example, or authorize medical treatments. In a perfect world, the senior already will have executed legal documents such as durable powers of attorney for finances and health care. These documents accomplish similar goals but don't demand the time, money and emotional upheaval of going to court. And they guarantee the person selected by the senior has the authority to step in when the time comes.
But all too often a disabling stroke, heart attack or other illness strikes unexpectedly and no powers of attorney are in place. In that case, conservatorship/guardianship may be the only option for those concerned about a senior's welfare. Because a conservatorship/guardianship hearing is an open proceeding, seeking to declare someone incompetent can expose intimate details of a senior's health and finances to public scrutiny. It also may result in an expensive trial about the competency of the senior as well as the most appropriate person to serve as conservator/guardian.
But conservatorship/guardianship does have two advantages:
Court supervision reduces the potential for neglect of the senior or the abuse and theft of money and property. The conservator/guardian must prepare regular reports for the court and sometimes seek court permission for major actions.
If family members are feuding, the court can cut though the gridlock and make its decisions stick.
Anyone can file a conservatorship/guardianship petition with the court. Usually it's a family member, caregiver or friend, but it also could be a social service agency, a health care facility or other organization. The court hears testimony and rules on whether the senior is capable of living independently. If the court finds the senior incompetent, it will appoint a conservator/guardian to take over some or all of the senior's affairs.
The senior can fight a declaration of incompetence or the appointment of any specific person as conservator/guardian. The senior has the right to appear at all hearings, cross-examine witnesses and be represented by a lawyer. If the senior can't afford private counsel, the court will appoint an attorney or a guardian ad litem (a guardian for this particular proceeding) to protect the senior. The court can revoke a conservatorship/guardianship if the senior recovers and can prove a conservator/guardian no longer is needed.
Often the person who brought the case is named as conservator/guardian - especially if this is the only person seeking the job. If others - relatives or friends - offer to take it on, the court usually will select the most qualified from among them. State laws often guide the choice. Most states grant priority to a spouse, adult child or other blood relative capable of performing the required tasks. The court also may take into account any evidence that the senior expressed wishes on the matter before becoming incompetent.
However, sometimes the court rules that no one close to the senior has the skills or objectivity necessary to fulfill the myriad demands of the conservator/guardian's role. In that case, the court will appoint an attorney, a bank trustee or someone else to the post, not a caregiver or family member who has been on the front lines with the senior. Though this can be painful and discouraging, it might serve the senior's best interests if complex legal, financial and medical issues are involved.
The best way is to make sure the senior takes action while still competent. The senior can pick whom to put in charge of finances and health care and the steps doctors should take in the event of a long disability or terminal illness by executing three documents:
Durable power of attorney for finances
Durable power of attorney for health care, also called a health care proxy
A living will, also called a health care directive or directive to physicians