- posted: Jun. 22, 2018
Usually the idea of guardianship and/or conservatorship as a bad thing - something to be avoided. In a perfect world, we have to do advance planning to provide for our own care if we become impaired or incapacitated, and we need trustworthy, responsible and financially astute family members who are willing and able to assist us. For some people, these “perfect world” conditions do exist. However, for many others, they do not.
Increasingly, attorneys run into the following situations:
1. Seniors come to us, often brought by their children or children-in-law, when mental incapacity has set in, and although they appear to have willing and able family members who can take care of them, assist with making personal care and living decisions, or manage their finances, the seniors do not have the necessary delegation documents in place to empower these helpers as their agents.
2. Seniors have documents in place, but the people named are dead or no longer available, willing or appropriate to serve.
3. The people who the senior trusted and anticipated would be appropriate have become exploitative and abusive to them.
4. Seniors have been conned into paying for, or agreeing to pay for, fraudulent products and/or services.
Elder abuse in its many forms—including fraud by unscrupulous “vendors,” financial exploitation, and physical or emotional abuse by “friends” and relatives– is a huge problem in the United States.
Another increasingly common situation is where seniors do not have agent –delegation planning in place and end up in a medical or living condition crisis where they are putting themselves or others at risk. Loyal family members and friends are very concerned, but nobody has the power to assist once they learn what needs to be done.
Alternatively, seniors may have excellent voluntary delegation planning in place, but the seniors are non-compliant about what they now need to do for their own safety and care. For example, they may need to live in an assisted living community or nursing home, but they voluntarily check themselves out and depart. They are free to make their own decisions, even though imprudent or unsafe, so they can walk right out and put themselves in danger. If they have access to an automobile, they put the general public at risk as well.
Adult Protective Services
In emergencies, where the seniors are unwilling to cooperate and their intransigence is putting themselves or others at risk, often the first call should be to Adult Protective Services (APS). In Missouri this is the Department of Health and Senior Services (DHSS). DHSS generally will appoint a social worker or other staff person to investigate, perhaps with local police in order to gain access to the senior and entry into the home.
Seeking Court Protection
Whether or not DHSS gets involved, and whether or not the case is an emergency or just a situation where the senior needs help and is not willing or able to sign voluntary agent-delegation documents, the solution is often a guardianship and/or conservatorship over the senior, if he or she meets the applicable standards of incapacity.
Terminology varies from state to state, but in general, guardianship (sometimes called “guardianship of the person”) applies to probate court appointment of a fiduciary (“guardian”) to make decisions in regard to the protected person’s personal care. A guardian generally does not have control of the protected person’s finances, although state law or the specific terms of the guardianship may authorize the guardian to hold small amounts of the protected person’s funds if no conservator has been appointed and the protected person does not have a durable power of attorney.
Conservatorship refers to probate court appointment of a fiduciary (“conservator”) to administer the finances and assets of the protected person. Conservatorship is much like trusteeship, although the powers of and restrictions on the conservator are defined by statute and regulation, rather than a voluntary trust agreement or trust declaration, and are typically are much less flexible than the powers authorized for trustees. Conservatorships are also analogous to durable powers of attorney. However, one of the key differences between conservatorships, trusts and durable powers of attorney is that conservatorships are court-supervised and directly accountable to the court. It is common for conservators to be required by state law and regulations to account annually to the probate court. A conservator does not have plenary power to do whatever financial transactions he or she feels are warranted. For example, a conservator needs specific court authorization to sell real estate in most states.
Thomas Walters Estate Planning builds lasting relationships with our clients based on the highest standards of integrity and professionalism. We help our clients customize plans that meet their unique needs, concerns, and goals. We compassionately assist families after the loss of a loved one. We believe that a well thought out and professionally developed plan will provide peace of mind making transitions for generations stress free and cost efficient.