Conservatorship

Definition

Conservatorship, also known as guardianship, is a legal term that refers to the authority (and corresponding duty) of one person (the conservator or guardian) over the personal and property interests of another person (the ward). The conservator or guardian may be a relative or friend of the ward or a private or public entity appointed by the court. In the United States, guardianship law is formulated and carried out at the state level.

The court may set limits of various kinds to the conservator or guardian's authority, and the conservator can act only within those limits. U.S. courts follow the principle that conservatorship should assure the ward as much autonomy as possible. But because conservatorship does remove many of the ward's rights, it should be considered only as a last resort in caring for a senior.

Description

How it works

In most cases, a conservatorship proceeding begins when a senior's sibling or adult son or daughter begins to question the senior's competency, defined in law as having the mental ability to understand information relevant to decisions that need to be made, including options; make decisions on the basis of reasonable weighing of relevant factors via risk/cost benefit analyses, and communicate those decisions to others. There is, however, no simple test to determine competency; some seniors may be competent in some areas but not in others, or they may have a medical condition that causes their level of competence to fluctuate. The American Association of Retired Persons (AARP ) recommends seeking a geriatric assessment before arranging for a conservatorship.

The next step is seeking legal counsel. Most states require a person seeking guardianship to retain a lawyer, who will file a petition with the court for a hearing in order to explain why the senior needs a guardian. Many states also require a medical or psychiatric evaluation of the senior. A judge or court visitor may interview the senior. A court visitor reports back to the judge. The court may appoint a lawyer to represent the senior, or the senior may hire a lawyer, particularly if the senior wants to fight the conservatorship.

At the hearing (which the senior is encouraged to attend), the judge appoints a conservator, usually a family member, but in some cases an outsider or an institution. The conservatorship may be limited to property management or to personal care, or it may be total. In the latter case, the conservator or guardian is responsible for the senior's housing, medical care, personal cleanliness and nutrition , and many other concerns in addition to financial management .

Conservators are required by law to file periodic reports with the court on the ward's financial affairs and the care that is being provided, which usually requires being in frequent touch with the conservator's attorney. Most states have handbooks for conservators to help them understand their responsibilities.

Alternatives

The major reason why conservatorship should be the choice of last resort in caring for a senior is that a ward loses most of his or her basic rights of citizenship. In many states, wards cannot do the following:

• marry or divorce
• vote in elections
• buy or sell property or write checks
• drive a car
• enter into contracts
• choose their place of residence
• consent to medical treatment
• make decisions about end-of-life treatment
• own or possess a firearm or other weapon

Alternatives to guardianship recommended in a report prepared for the Senate's Special Commission on Aging include:

• Durable power of attorney (DPA). A DPA is a document that allows the senior to appoint another person to make decisions for him or her in the event of incapacity. DPAs are usually related to property but can also be written to cover health care.
• Advance directives. These allow the senior to make a living will or choose a healthcare proxy before the senior is incapacitated. They also minimize the possibility of disagreements among the senior's relatives leading to lawsuits. Taking a family disagreement to court often results in the court's appointing an outside person or institution as the senior's guardian.
• Advance nomination. This measure allows a senior to name a conservator in the event that a court later decides that it is necessary.
• Trust. This arrangement allows the senior (the grantor) to transfer property to another (called a trustee) in a trust for the senior's benefit.
• Joint ownership. The senior can name a spouse or other relative as co-owner of the senior's property; the co-owner can legally manage the property if the senior is incapacitated.
• Representative payee. If the senior is receiving benefits from a government agency, that agency can appoint a representative payee to receive, manage, and spend the benefits for the beneficiary.
• Case/care management. In some cases, a geriatric case manager can help with decisions about health care and other matters affecting an incapacitated senior.

KEY TERMS

Capacity —Ability to understand the nature and consequences of one's acts; also, the legal qualification, power, or fitness to take an action.

Competence —The mental ability to understand problems and make decisions.

Conservator/guardian —An individual or organization named by order of the court to exercise any or all powers and rights over the person or financial assets of an incapacitated individual.

Granny snatching —An informal term used to describe taking an incapacitated senior over state lines in order to put him or her into a guardianship.

Trust —A property interest held by one person (the trustee) for the benefit of another (the grantor).

Ward —A person who by reason of incapacity is under the protection of a court, either directly or through a guardian or conservator appointed by the court. In some jurisdictions wards are called conservatees or protected persons.

Viewpoints

Conservatorship reform movement

Conservatorship/guardianship first became controversial in 1987, when the Associated Press ran a series of articles on the courts' failure to protect incapacitated seniors from neglect or abuse by their guardians. In the late 1980s and throughout the 1990s, various reform measures were taken to establish guidelines for guardianship and improve court monitoring of conservators and guardians. Nonetheless, the American Bar Association and other bodies of legal professionals issued several reports in 2005 calling attention to the lack of data collection and other evidence of ineffective court oversight of guardians.

One specific problem related to conservatorship is colloquially known as granny snatching. This phrase refers to taking an incapacitated senior over a state line in order to put him or her into a guardianship and gain control of his or her assets. In many cases granny snatching takes place within a family, usually when one adult offspring is fighting a sibling. Other cases, however, have involved hospitals, lawyers, or other relatives seeking to control the senior's wealth. These situations have developed because there is as of 2008 no uniform conservatorship or guardianship law applicable in all 50 states. In the summer of 2007, the National Conference of Commissioners on Uniform State Laws (NCCUSL) completed its draft of a uniform law for adult guardianship and protective proceedings and recommended its adoption by the states, but as of early 2008 the law awaited nationwide adoption.

Avoiding conservatorship

There are many reasons why seniors and their families should consider advance directives , trusts, or other courses of action to avoid conservatorship. The most obvious is the senior's loss of some or most of his or her legal rights. Another reason is the potential for family squabbles ending in lawsuits. Still a third is expense: Even when a petition for conservatorship is uncontested by the senior or by other relatives, the process usually costs several thousand dollars. Figures for attorney and court fees from one county in Oregon for 2006 ranged between $2,200 and $4,200, with a few cases even higher. Last, the increasing numbers of elderly persons in the general population means that court oversight of conservators or guardians is likely to be even less effective in the foreseeable future than it was as of 2008.

Resources

books

Beers, Mark H., and Thomas V. Jones. Merck Manual of Geriatrics, 3rd ed., Chapter 14, “Legal and Ethical Issues.” Whitehouse Station, NJ: Merck, 2005.

periodicals

Fields, Robin, Evelyn Larrubia, and Jack Leonard. “Guardians for Profit.” Los Angeles Times (November13 to November 16, 2005). This is a four-part series on abuses of conservatorship and the need for legal reform. http://www.latimes.com/news/local/lame-conservators-series,0,7048390.special [cited April 8, 2008].

MacCormack, John. “Guardianship Case Lets Loose Calls for Reform.” San Antonio Express-News, March 14, 2006. http://www.mysanantonio.com/news/metro/stories/MYSA031406.1B.elderlaw.d2063e7.html [cited April 8, 2008].

other

“Caring for Parents: Guardianship.” American Association of Retired Persons (AARP) [cited April 8, 2008]. http://www.aarp.org/families/caregiving/caring_parents/a2003-11-07-Guardianship.html.

“Legal Services for Older Adults and Elder.” Law Administration on Aging (AOA) April 7, 2003 [cited April 8, 2008]. http://www.aoa.gov/prof/notes/Docs/Legal_Ser-vices_Elderly.pdf.

organizations

Administration on Aging (AoA), One Massachusetts Ave-nue, Washington, DC, 20201, (202) 619-0724, [email protected], http://www.aoa.gov/index.asp.

American Association of Retired Persons (AARP), 601 E Street NW, Washington, DC, 20049, (800) 687–2277, http://www.aarp.org/.

American Bar Association (ABA) Commission on Law and Aging, 740 Fifteenth Street NW, Washington, DC, 20005, (202) 662–8868, http://www.abanet.org/aging.

National Conference of Commissioners on Uniform State Laws (NCCUSL), 111 North Wabash Avenue, Suite 1010, Chicago, IL, 60602, (312) 450–6600, (312) 450–6601, http://www.nccusl.org/Update/AboutNC-CUSL_desktopdefault.aspx.

National Guardianship Association, 174 Crestview Drive, Bellefonte, PA, 16823, (877) 326–5992, (814) 355–2452, [email protected], http://www.guardianship.org/index.htm.

“Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act.” National Conference of Commissioners on Uniform State Laws (NCCUSL) July 27–August 3, 2007 [cited April 8, 2008]. http://www.law.upenn.edu/bll/archives/ulc/ugijaea/2007_final.htm

Rebecca J. Frey Ph.D.