Hi there . . .

At this very moment I am sitting in the back yard of my friend's house in Placitas, NM (near Albuquerque) looking at the most beautiful Sandia Mountains. I'm the most relaxed I've been in a very long time! I love this whole vacation concept! Hard to think that by this time next week I'll be home.

Getting a parent to give up driving is a huge issue. Martin Diano, publisher of the Baby Boomer [Knowledge Center]^TM and Founder of Boomer Authority^TM has written an excellent article

Till next week, carpe diem!

The Ultimate Caregiver's Success System

ARE YOU AN ELDERCARE PROVIDER?

If you found something that told you WHAT to do and HOW to do it so you could resolve your eldercare issues by choice, not crisis . . . you'd buy it . . . right?

ARTICLE: Why & How to Avoid Guardianship or Conservatorship

This information is for educational purposes only, and should not be relied on as legal advice. Leanna Hamill is only licensed in the Commonwealth of Massachusetts, and protective proceedings may vary in other states. You should always consult with an attorney about your particular situation, and not rely on general information when acting or refraining from acting.

What is a guardianship?

A guardianship is a legal relationship created by a court between a guardian and her ward, usually an incapacitated adult. The guardian has a legal right and duty to care for the ward. This may involve making personal decisions on his or her behalf, managing property or both.

What is a conservatorship?

A conservatorship is a like a guardianship but generally refers only to property. The conservator has a duty to care for the ward's property.

Why would someone need a guardian or conservator?

A guardian or conservator is needed if a person becomes unable to manage their own affairs due to mental illness or incapacity, and there is no one with the legal authority (through a power of attorney, health care proxy or trust, for example) to manage things and make health care and financial decisions.

What should a family know before embarking on guardianship or conservatorship?

Guardianship and conservatorship proceedings can be rather traumatic on the family. It is often the children who are pursuing the action against their parents, which can disrupt the parent/child relationship. Many times there are differing opinions about who should serve as guardian or conservator, or even whether a guardian or conservator is needed.

If I think my parent is making bad decisions, or they just aren't doing what we want like moving to an assisted living -- is that usually enough for a guardianship?

No, most courts impose a very high standard when placing someone under a guardianship or conservatorship because it involves removing someone's right to act for themselves. Many states courts are moving towards Limited Guardianships so that whatever rights can be preserved for the ward are. With a Limited Guardianship, the powers of the guardian are tailored for each case, rather than transferring all decision making powers.

Recognizing that that the process will vary by state, what are the general steps involved in getting a guardianship or conservatorship over a parent?

In general, the first step is obtaining a medical certificate from a doctor who has treated the proposed ward which will outline why the guardianship or conservatorship is needed, and any limit that should be put on the guardian/conservator. These forms can be quite comprehensive; in Massachusetts, this form is 8 pages long.

The next step would be to meet with an attorney to complete and file the rest of the paperwork with the Court. The proposed ward will be notified of the proceedings against them, and all heirs will be notified. Often a legal notice regarding the proceedings must be published in the local paper. In many cases, an attorney will be appointed for the proposed ward to make sure that their wishes are heard, and to possibly contest the guardianship. There will then be a Court hearing for a judge to decide whether or not a guardian or conservator or both will be appointed, and what their powers will be.

What are the costs associated with a guardianship or conservatorship?

Costs include the fee to the doctor for the medical certificate, which is generally not covered by insurance; attorney fees for the people bringing the petition for guardianship/conservatorship; attorney fees for the proposed ward; attorney fees for any family members contesting the proceedings; fees to pay a Guardian Ad Litem for their report to the Court; Court costs; cost of the bond.

What are some of the things that can drive up the cost?

A contested guardian/conservatorship can drive up the cost significantly, or if the family members can't agree amongst themselves who should serve and they are each bringing an action.

What are the responsibilities of guardian or conservator once they've been appointed?

Serving as a guardian or conservator is an ongoing job, and a big responsibility. There is the responsibility to file an Inventory of the ward's assets, and in some states the conservator must file a financial plan outlining how they plan to manage the ward's income and assets. An Accounting must generally be filed every year showing how all of the ward's funds were used. A guardian has complete responsibility for the health and well being of their ward, and in many states they need to file a yearly report outlining the ward's living situation, their medical condition, how often the guardian visited them. A guardian or conservator is always subject to the oversight of the Court and can be penalized for failing to properly account for funds and monitor their ward.

Are there alternatives?

Yes. In most cases, a person is at some point in their life capable of signing a Durable Power of Attorney for Finances, and a Health Care Proxy (sometimes called a Durable Power of Attorney for Health Care), or a Trust to hold property and provide for the ongoing management of that property. These documents allow the person of your choosing to make decisions regarding your health care and take action regarding your property in the event that you are unable. In most cases, with these documents in place a guardianship or conservatorship will not be needed, even if you become incapacitated.

These documents should contain a provision to nominate the person of your choosing to serve as guardian or conservator in the rare event that one was needed. The Courts will honor this nomination in the absence of overwhelming evidence as to why they shouldn't. Having these documents in place insures that if a guardian or conservator is ever needed, you will have selected the person when you were still capable of doing so.

Attorney Leanna Hamill provides Estate Planning and related legal services to clients of all ages, with a focus on the needs of older individuals and their families. Based in Hingham, Massachusetts, Leanna provides the following services: Estate Planning; Estate Administration; Guardianship and Conservatorship Services; Comprehensive Estate and Medicaid Planning Evaluations; Medicaid Advocacy. Leanna works with her clients to plan for and face life's exciting changes, unexpected challenges and inevitable transitions. http://www.lhamillattorney.com

Remember, if you're struggling to help your aging loved one, I urge you not to wait for a crisis to develop. Please call me toll-free at (877) AGE-WISE or email me at Barbara@AgeWiseLiving.com for a complimentary "get acquainted" conversation. I'm here to help!

September 1st Age Wise Living Radio Show

Surviving Eldercare

Many of us -- especially Baby Boomer women -- have been raised to believe our job is to take care of our family's needs, including those of our aging parents. It's easy to lose sight of ourselves during the process of caregiving. We so often feel that we shouldn't complain. After all, they're our parents and we have a duty to them. Finding the balance between eldercare and the rest of our lives is critical. That's why I'm so delighted that life coach and writer Ellen Besso will be joining us to help us understand how eldercare affects every aspect of our life - and how to find the balance. http://www.ellenbesso.com