Choosing to become a loved one’s guardian or conservator is a serious matter that requires court approval. This role requires a great deal of responsibility as you’re now legally responsible for another adult, whether that be a parent, sibling, or spouse. And depending on the mental state of your loved one, they may not be willing to relinquish control over their own lives—even if it’s the right thing to do. If you’re considering stepping into this role, here’s what you should know.
The court may appoint two main responsibilities: making financial decisions on behalf of the person, and making healthcare and personal decisions on behalf of the person. Some states use the term guardianship to describe both roles, while others use the term conservatorship. Still other states distinguish between the roles, using one to denote financial authority and one for healthcare authority.
Depending on what the person needs, it’s even possible to have different caregivers act as guardian and conservator. But, in most cases, the two go hand in hand, allowing caregivers to make important decisions on behalf of a loved one.
When is it time to step in?
When someone is no longer able to handle their own affairs or make their own healthcare decisions, it may be time to rely on a durable power of attorney (a legal document that names an agent to act on the person’s behalf). But if there is no durable power of attorney, guardianships or conservatorships may be your only option. These typically come into play when there’s been a major health event or decline in function, such as following a stroke or traumatic brain injury. It could also come into play if an older family member has Alzheimer’s or dementia that has progressed beyond a point where the person can function independently; they may lose the ability to pay their own bills, for example.
Deciding to take over the care of a loved one isn’t something that’s done quickly or lightly. Meeting with your loved one’s care team—including his or her doctor, geriatrician, psychologist and even possibly a social worker—can help to build a complete picture of your loved one’s capabilities and whether now is the time to step in.
What does the process entail?
As you can imagine, taking over health-related and financial decisions for another person is a major duty, and the courts want to make sure it’s done right to protect the incapacitated party. You may need to gather assessments from your loved one’s doctor and care team, in order to prove the person’s limited capabilities and need for guardianship or conservatorship. It’s often advised to have a lawyer help you navigate the process. The first thing you’ll need to do is open up a guardianship or conservatorship case, which tells the judge about your situation and why you’re requesting this type of control. You’ll need to fill out paperwork, including the plan of care and monthly budget for your loved one as well as a “certificate of incapacity” from a doctor to show the person can no longer make these kinds of decisions independently. In some states, a court-appointed social worker or court-appointed doctor will make an independent assessment as well.
Once the preliminary paperwork is out of the way, you’ll need to appear for a hearing in front of a judge who will hear your case, ask questions, and determine if your guardianship (or conservatorship) will be granted. Your loved one must be given notice of the court date and has the option to appear (and contest) the appointment. Because this role typically follows an injury or decline in health or independence, the entire process tends to happen within the span of a few weeks. Keep in mind that if your guardianship is contested by another family member, the process may take much longer, as the court hears both cases and consider the characters and resources of both possible appointees.
Once guardianship is granted, you’ll be in charge of another person’s well-being, and may need to appear in court regularly with updates to the care you’re providing as well as keeping a close record of how money is spent. In all cases of guardianship, you’ll want to consult a lawyer to make sure you understand your role and responsibilities clearly.
By Kate Rockwood
