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Conservatorship is the legal process of appointing a person called a conservator to make financial decisions on behalf of another person. Understanding when conservatorship might be a good option — as well as how estate planning can prevent it — is an important step in the process of arranging care for elderly loved ones or even for your own senior years.
Who Needs Elderly Conservatorship?
Conservatorship is a legal arrangement that allows another party to make decisions about a person’s property, income or other assets when they are unable to make those decisions in their best interests.
Some common reasons for seeking conservatorship for an elderly person are:
- The person has a form of dementia
- The person has suffered a stroke or aneurysm
- The person has been the victim of fraud or a scam
Conservatorships are not the same as guardianships. The conservator has no authority to make decisions about the health or well-being of the protected person, such as medical decisions. Sometimes, however, an elderly person who is considered incapacitated may need both a conservator and guardian, and often the same person holds both positions.
How Do I Get an Elderly Conservatorship?
If you are seeking conservatorship of a loved one, you will first file a petition with the Probate and Family Court. This petition will need to address the following questions:
- Why is conservatorship needed? You will need to establish an acceptable reason for seeking the conservatorship as well as demonstrate that the protected person has been deemed incapacitated by a medical professional.
- What harm will conservatorship prevent? Simply proving that the person has engaged in unwise spending is not enough for the court to want to take a person’s financial rights away. You must demonstrate that significant harm has been or will be caused unless a conservator is allowed to intervene.
- How will the conservator prevent the stated harm? The documents you submit must include your plan as potential conservator to prevent the harm stated in the petition.
What Are the Responsibilities of a Conservator for the Elderly?
Although a conservator is responsible only for financial decisions, many of those decisions have an impact on the daily life of the protected person.
A conservator’s duties may include:
- Managing assets, such as investments
- Acquiring necessities or other items, or funding their purchase
- Paying for placement in a facility when care is needed
Paying bills and taxes, including medical bills
- Managing property by paying for insurance, rent or mortgages, or perhaps hiring a property management company to maintain and rent the property
Conservatorships do not always mean complete control over the elderly person’s finances. Conservatorship powers may be limited by the court to specific duties. When possible, the court prefers that the protected person be encouraged to at least participate in decisions about their business and finances.
The probate court will specify in the documents what the conservator is responsible for managing and which rights the protected person will keep, which may include:
- How much money they have access to spend freely each week
- Planning their own budget and direct expenditures
- Making donations to charities of their choosing up to a certain amount
- Establishing and using available credit lines
- Making decisions about the sale of property or assets
- Participating in the operation of a business
When a conservatorship is granted, the conservator has 90 days to submit an inventory to the court of the protected person’s assets as well as file annual accounting. The oversight provided by Massachusetts Probate and Family Court is intended to further protect the elderly protected person.
How Long Is Elderly Conservatorship?
A temporary conservatorship lasts for 90 days and may be extended for an additional 90 days, if needed. Permanent conservatorship lasts until the protected person passes away or the conservatorship is revoked by a judge.
For elderly people whose incapacitation is the result of deteriorating faculties, conservatorship is often permanent. However, many people do live long lives even with forms of dementia. Planning for this kind of scenario proactively rather than having a conservator appointed after the fact can mean a more sustainable, manageable situation for all involved.
What Does a Conservatorship Lawyer Do?
The goal of the courts and attorneys is to find the most effective — but least restrictive — way to protect an elderly person who is unable to care for their own business or financial affairs. Conservatorship attorneys can support any interested party in a conservatorship case from filing the initial petition to ongoing support for the conservator in navigating their responsibilities.
How Do I Avoid Conservatorship?
Even imagining being in a position to need someone to manage your finances for you can be difficult, but an estate planning attorney knows the worst-case scenarios and can help you plan for them. A comprehensive and individualized estate plan will provide a sense of financial security and peace of mind for you and your family often long before it ever is put to use.
A wills and estates lawyer can work with you to determine the kind and level of estate planning that will help protect you and your family in the senior years. DIY estate planning rarely includes the level of consideration you will need for financial protection in the event that you become incapacitated.
Contact The Law Offices of Kimberly Butler Rainen today to schedule your consultation, and let us help you find the best solution for your family.