Guardianships & Conservatorships and How to Avoid Them
If a person becomes mentally or physically handicapped and can no longer make rational decisions about their person or their finances, their loved ones may consider a guardianship or a conservatorship whereby a guardian would make decisions concerning the physical person of the disabled individual, and conservators make decisions about the finances.
Typically, a loved one who is seeking a guardianship, or a conservatorship, will petition the appropriate court to be appointed guardian and/or conservator. The court will most likely require a medical doctor to make an examination of the disabled individual, also referred to as the ward, and appoint an attorney to represent the ward’s interests. The court will then typically hold a hearing to determine whether a guardianship and/or conservatorship should be established. If so, the ward would no longer have the ability to make their own medical or financial decisions. The guardian and/or conservator usually must file annual reports on the status of the ward and their finances.
Guardianships and conservatorships can be an expensive legal process, and in many cases, they are not necessary or could be avoided with a little advance planning. One way is with a financial power of attorney and advance directives for healthcare, such as living wills and durable powers of attorney for healthcare. With these documents, a mentally competent adult can appoint one or more individuals to handle their finances and healthcare decisions in the event that they can no longer do so. A living trust will also allow someone to handle your financial affairs – you can create the trust while you are alive and, if you become incompetent, someone else can manage your property on your behalf.
In addition to establishing durable powers of attorney and advanced healthcare directives, it is often beneficial to apply for representative payee status for government benefits. If a person gets VA benefits, Social Security, or Supplemental Security Income, the Social Security Administration or the Veterans’ Administration can appoint a representative payee for the benefits without requiring a conservatorship. This can be especially helpful in situations in which the ward owns no assets, and the only income is from Social Security or the VA.
When a loved one becomes mentally or physically handicapped to the point of no longer being able to take care of their own affairs, it can be tough for loved ones to know what to do. Fortunately, the law provides many options for people in this situation.