Understanding Guardianship and Conservatorship for Aging Parents

As our parents age, they may develop age-related health conditions that affect their ability to manage their own financial, medical, or personal affairs. Ideally, you’ve already had an in-depth conversation with your family about how to handle major life decisions in case someone is not able to make these decisions for themselves, and have documents and paperwork in place to help you proceed in case of emergency. If you have legal tools such as a Power of Attorney (POA) or Living Trust in place, you’ve already set yourself and your family up to be prepared for emergencies. 

Without a POA or living trust, you may need to establish a guardianship or conservatorship to ensure their safety and well-being in case of illness or incapacity. Understanding the process and when to seek professional help can make an extremely stressful situation more manageable and allow you to make informed decisions to meet the needs of your loved one.

What Are Guardianship and Conservatorship?

Both a guardianship and a conservatorship are designed to protect people who can no longer make informed decisions for themselves due to age, illness, or disability. Understanding the differences between guardianships and conservatorships is crucial for anyone facing the challenge of caring for a loved one who can no longer manage their own affairs.

• Guardianship: A legal arrangement where a court appoints an individual (guardian) to make personal and healthcare decisions for someone who is unable to do so (ward). Typically, family members or close friends are chosen as guardians. Open communication between parents and potential guardians is crucial to ensure that their needs are properly met.
• Conservatorship: While a guardian is responsible for making decisions about a person’s healthcare and personal needs, a conservatorship focuses on managing the individual’s finances and assets. While the courts usually look to family members and close friends, professionals like elder law attorneys are also often granted conservatorships. 

Both guardians and conservators are required by law to act in the best interests of their wards, and to make decisions that reflect their preferences and values, as well as what is most beneficial and least restrictive to their well-being. They both submit regular reports to the court to protect the interests and well-being of the ward. 

However, a conservatorship is generally more limited in scope compared to guardianship, as it typically only extends to financial aspects of the individual’s life. In some cases, the same person can be appointed as both guardian and conservator, but the roles and responsibilities are distinct and governed by different sets of legal criteria. 

When to Invoke A Guardianship or Conservatorship

Knowing when to invoke a guardianship or conservatorship is the first step to establishing legal decision-making power for your loved one during an emergency. Guardianship or conservatorship often becomes necessary when:

• A parent has not established a Durable Power of Attorney (POA) or Living Trust.
• A parent is no longer capable of making informed decisions due to cognitive decline, dementia, or illness.
• Immediate intervention is needed to protect a parent’s finances, health, or safety, and no one is legally authorized to step in.
• Before you start applying for guardianship, you may also want to explore whether there are other means of accessing your loved one’s accounts or dealing with the growing issues:
  • Are you a joint owner or co-signer on any of their bank accounts?  
  • If your loved one is in a hospital or nursing home, check to see if your state grants you any rights as a family member. (e.g. The Family Health Care Decisions Act in New York) 
  • Check to see if your loved one has some limited capacity to sign a health care proxy or power of attorney after you seek advice and consult with their physician or elder law attorney. 

Without a POA or Living Trust, no one— including adult children—automatically has the authority to act on a parent’s behalf. When this happens, the court will appoint a guardian or conservator to manage decision-making responsibilities.

How to Qualify for Guardianship 

Qualifying and applying for guardianship or conservatorship is an involved process that requires a judge to confirm that the person you are applying to be a guardian or conservator for meets the high standards of proof that they are incapacitated and unable to make legal decisions. Guardianship laws vary by state, but the general process includes:

1. Filing a Petition: A family member, friend, or interested party files a petition with the probate or family court in the state where the parent resides. The judge will appoint a “court evaluator” or “guardian ad litem” for the alleged incapacitated person (AIP) and probably a court appointed attorney to protect the rights of your aging parent. 
2. Medical Evidence of Incapacity: Guardianship usually begins by obtaining a physician’s certificate or doctor’s letter. This letter will state the elder parent cannot care for themselves, perform activities of daily living, or make rational decisions. These letters are form, statewide documents that a doctor completes attesting to the patient’s physical ability and mental acuity.
3. Court Hearing: A judge evaluates the evidence, hears testimony from family and professionals, and determines whether guardianship is necessary. There is generally a high burden of proof required for the court to appoint a guardian or conservator. 
4. Care Plan: The petition must contain a care plan for the incapacitated person and powers to be given to the guardian that provides for an appropriate health care plan, place of residence, and a list of appropriate and necessary powers that need to be given to the guardian to carry out the care plan. At this stage, the court may need to hear from medical experts and social workers to finalize the plan..
5. Selection of Guardian: The court appoints the most suitable person to serve as guardian, often giving preference to family members but prioritizing the ward or AIP’s best interests.
6. Ongoing Oversight: As guardian, you will be required to file regular reports showing all financial information, including assets, liabilities, income received, expenditures including taxes, how the care plan is being implemented, a health report for the incapacitated person, and any issues that arose during the year. The reports must also be provided to a court appointed referee who reviews it and files a report with the court, raising objections if either financial or care issues the referee finds inappropriate. 

It’s important to remember that each state has its own specific requirements and legal standards for guardianship. Consulting an elder care lawyer familiar with your state’s laws is highly recommended.

When to Work with Professionals

Handling guardianship can be complex, especially in emotionally charged situations. Enlisting the help of professionals can take some tasks off your plate during a stressful situation, as well as ensure you are prepared and in good standing with the court. Some professionals that you can reach out to include:

• Geriatric Care Managers: GCMs can help develop and coordinate care plans as you’re taking care of your loved ones or handling court proceedings. They can recommend in-home care, housing options, and services, making them invaluable in crafting a long-term care strategy.
• Elder Care Lawyers: Eldercare lawyers specialize in navigating guardianship and conservatorship processes, including preparing necessary documents, representing you in court, and addressing disputes among family members. Involving an elder care lawyer is highly recommended to make sure both you and your loved one are protected through this process. 
• Social Workers: Elder care social workers provide resources, advocacy, and guidance. They can help with finding local services, managing healthcare transitions, and addressing concerns like abuse or neglect. Social workers may also be able to help you find elder care attorneys and other important service providers in your community. 

Involving professionals ensures that legal, financial, and care decisions are handled in your parent’s best interests.

When to Call Adult Protective Services (APS)

If you think your loved one is being abused or taken advantage of by their guardian or conservator, call Adult Protective Services right away. APS is a government agency tasked with investigating elder abuse, neglect, and exploitation. You should contact APS if:

• You suspect your aging parent is being financially exploited or abused
• You think the guardian or conservator is neglecting the agreed upon care plan or your loved one’s health
• Your parent’s living situation is unsafe, and they’re unwilling or unable to seek help
• Your loved one’s decision making is a threat to their own welfare

APS can assess the situation, intervene when necessary, and even initiate guardianship proceedings if no family member is able to act.

Navigating guardianship or conservatorship is a challenging process — legally, emotionally, and financially. Understanding the steps involved, knowing when to seek professional help, and exploring alternatives can make the journey more manageable. Above all, approach the situation with empathy and a focus on protecting your parent’s dignity and well-being. Planning ahead and staying informed are the best ways to ensure your loved one’s needs are met with care and respect.