Hi all --

It's here! Spring has arrived! All the trees and flowers are starting to bloom and it's total magic in Central Park.

This is going to be a very busy month for me. Lots of speaking engagements and book signings. The year certainly is off and running!

Since there's lots to cover in this month's newsletter, I'll keep this short and let you read on!

Have a terrific month.

I want people to know what to do and how to do it so they can calmly and successfully address their eldercare issues before it becomes a crisis!

If you're waiting for a better time - don't! 

There is no better time!

For more information and to purchase your copy, please click here.

BARBARA INTERVIEWED ON THIRD AGE RADIO SHOW

I'm delighted to report that I was interviewed for the Third Age Radio Show out of Santa Barbara, CA. The show, about the transition into what they call the Third Age, is aimed at people 50+. They help listeners discover a new joy and passion for living in the Third Age as well as address many of its problems. You can listen to this show by going to http://www.thirdagefoundation.com/radio_show.html.

ARTICLE: GUARDIANSHIPS/CONSERVATORSHIPS -- WHY THEY SHOULD ALWAYS BE YOUR OPTION OF LAST RESORT

A lot of people tell me "well, if I can't get my parent to let me help, I'll just go to court and get appointed guardian" If your aging loved one is no longer capable of handling their own affairs, and there are no other mechanisms in place for someone to step in and help, then there may be no alternative. But a conservatorship/guardianship should never be considered the place to start.

To help you understand conservatorships/guardianships, I've asked Marcie G. Roth, a former partner of the Elder Law firm Freedman Fish & Grimaldi LLP and currently a partner of Singer, Block, Matles & Roth (marciegroth@verizon.net) to assist in writing this article. However, nothing in this newsletter should be construed as legal advice. And, as is so often the case, laws and terminology differ from state to state and each state regulates the conservatorships and guardianships, so be sure to check this information for your state.

Q> What is a "conservatorship" or "guardianship"?

A conservatorship and a guardianship is a court-ordered legal relationship in which a person, who is called a guardian or conservator is appointed to manage the financial and personal needs of another. In doing so, the Court may strip the incapacitated person of some or all of his or her right to make financial and personal decisions for himself or herself.

Q> What's the difference between a conservator and a guardian?

A conservator has a more limited scope than a guardian. In some states the laws creating a conservator predates the laws creating a guardian. Often the powers of the conservator are limited to financial needs while the guardian is given more expansive powers of the personal needs as well. In some states the words may be interchangeable.

Q> What are the advantages to a conservatorship and a guardianship?

A conservatorship or guardianship allows for someone to take control and manage the affairs of an incapacitated person when no other method of delegating those duties is in place.  For example, if someone’s dementia has progressed to a point where they can no longer sign legal documents and appoint a power of attorney or if a sudden illness or accident prevents them from controlling their lives – again, with no power of attorney in place. 

Q> What are the disadvantages?

A conservatorship or guardianship is very expensive. The person petitioning for a conservatorship or guardianship will have to hire an attorney to prepare and file a petition and represent them in court. In addition, there fees to court appointed attorneys who investigate and evaluate the need for the appointment. If there is a family dispute over the appointment, attorneys fees will increase as the litigation escalates. An additional cost is the commission or payment for the services of the individual appointed. While a family member may waive this fee, an independent person would not.

A conservatorship or guardianship proceeding can be very demeaning for your aging loved one as they will have to be present in court and hear their family and possibly their doctor testify as to their incapacity. To say nothing of the emotional anguish of the family member having to make the declaration.

It's very intrusive for the entire family. What was up until now a private affair becomes a matter of public record. While files can be sealed, without a request the information filed is accessible by the public as it becomes a public record.

Q> What does a conservator or guardian do?

In most states the conservator is responsible financial decisions. They may have limited access to one bank account or control over the entire portfolio of the incapacitated person. In most states the guardian has more expansive control and will make decisions about personal matters such as medical care, residency, food, clothing, shelter, asset protection, paying bills, and making investments. Certain transactions such as buying or selling real property, borrowing or gifting assets and paying attorneys will require court permission. Every time additional court approval is sought, additional attorneys' fees must be paid. There will be significant delay in completing these transactions as compared to what can be accomplished by an agent under a Power of Attorney.

Q> If there is a family member that wants to be the conservator, are they automatically appointed?

Usually but not always. If all family members are in agreement, then it would probably be a family member. If there is a lot of conflict among family members, however, then the court could appoint a third party such as an attorney or professional guardian. While the appointed person, whether family or not, is required to complete a training program, an independent person does not know the family, so their decisions might not be the decisions the family would want made. In addition, a court-appointed guardian will not waive his or her commission, adding an additional expense.

You will also have to prove that the person you're seeking conservatorship over is incompetent to handle his/her own affairs. Just because they're not cooperating with you or not doing what you think they should do will not be enough.

Q> If I'm appointed conservator, they'll have to work with me -- right?

Just because you've been named the conservator, doesn't mean your aging parent will suddenly begin to cooperate with you. In fact, just the opposite is probably true! If they weren't happy about having you involved in their affairs before, it is highly unlikely that a court proceeding is going to make them warm up to the idea. It should always be considered your last resort.

That's why it's important to start communicating with your elderly parent early and often and persuade them to see an Elder Law attorney to get their legal and financial affairs in order as soon as possible.

And for more information on how to talk with your aging parent before there's a crisis - so you can avoid the need for a guardianship/conservatorship) - I encourage you to check out my "The Ultimate Caregiver's Survival Guide" workbook.

And for more information about the most important legal documents you should have, what an Elder Law attorney is and why you should use one, what you can expect when seeing one, the biggest mistakes a family and their aging parent make when making a long term plan, and much more, please check out the AgeWiseLiving Expert Series.

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