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What Should I Know about Conservatorships?

February 24, 2022
David Parker, Esq.
Beware Inheritance Theft
David Parker, White Plains and New City NY Estate Planning Attorney
David Parker, Esq.
David Parker is an attorney who specializes in Estate Planning and Elder Law and has been practicing law for 30 years. Be it Wills, Trusts, Powers of Attorney, Health Care Proxies, or Medicaid Planning, David provides comprehensive and caring counsel for seniors and their families. A large portion of David’s practice is asset protection strategies so that families do not lose their hard earned savings to nursing home care costs. He also handles probate administration for the settlement of estates.
Seeking a guardianship for a loved one is a decision that shouldn't be taken lightly. Here's how the process works.

Control over another person's life and money has been in the news recently and not in a good way. Conservatorships made a lot of headlines a few months ago, when singer Britney Spears contested her father's 13-year control of her finances. Kiplinger’s recent article entitled “What to Do When a Family Member Needs a Guardian” says that even Netflix portrays these legal arrangements as little more than an invitation for fraud in its 2021 movie, "I Care a Lot," which starred Rosamund Pike as a professional guardian who cheats her clients out of their life savings.

While the rules vary by state, generally when someone (a petitioner) files a petition with the court to seek conservatorship of an adult, a judge holds a hearing to determine whether that person meets the state's standard for needing a guardian. A person requiring guardianship can lose important rights, including the ability to marry, travel, make certain medical decisions, possess firearms or even vote.  That is why courts may be reluctant to permit an all-encompassing loss of rights. It is common for a court to limit a guardian's authority, so that it only addresses a specific area with which the person needs help—like managing bills and maintaining a home. The least intrusive option is generally preferable.

An examination by a physician is usually required to determine if the individual suffers from a medical condition that impairs judgment. However, sometimes the need for a guardian is clear -- for instance, a person who has suffered a stroke and is in a coma. Dementia is the most common reason why an adult might be declared incapacitated. Note that depression can be mistaken for dementia. Delirium, which can cause a person to be confused and unaware of their environment, is another common cause.

When a conservatorship is needed, courts typically appoint a family member. However, sometimes there is no one appropriate, so the court may appoint a public guardian paid by the state or occasionally a professional guardian paid with private funds.

Note that the guardian's job is to protect your loved one, not serve the family’s interests. As a result, family dynamics can be stressful because relatives believe the guardian is spending their inheritance.

A guardian must keep clear records as to how any money is spent and discuss any reimbursement for expenses, such as the time and mileage for transporting the ward to appointments, in advance.

Being a guardian should be seen as a professional job. Depending on the situation and how complicated it is, it can be a great deal of work.

Reference: Kiplinger (Jan. 25, 2022) “What to Do When a Family Member Needs a Guardian”


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