Many relatives or caretakers of loved ones living with a disability may at some point need to be able to exert more control over their family member's personal affairs. For parents of children who have a disability, for instance, that time is often when the child is turning 18. However, you may face roadblocks if you have not filed paperwork that allows you to do so. Banks, agencies, and hospitals may push back on your ability to make decisions that can impact the care of your loved one, which can be very frustrating.
What are your options in this situation? You may need to seek a conservatorship or guardianship.
The terms conservatorship and guardianship are often used interchangeably but, depending on your state, do not necessarily have the same meaning. For example, in California and Connecticut, guardianships apply to minors, and conservatorships are for adults. Many states further distinguish these terms as conservatorship/guardianship of the person (e.g., the right to decide on someone’s behalf about personal and medical issues) or conservatorship/guardianship of the estate (e.g., the right to handle someone’s financial affairs). The level of decision-making and authority a person may be given over another is decided on a case-by-case basis.
Both conservatorship and guardianship require a court's approval. This means you must go through a legal process to acquire these powers over someone else's life. A young person living with a disability may already be unable to make their own decisions but is about to reach adulthood, and parents who need to be able to continue care for their child will pursue guardianship or conservatorship. Alternatively, a person may become disabled later in life because of an unexpected injury or illness and a family member may need to obtain guardianship in order to be able to step in and manage their affairs.
Conservatorship or guardianship can be expensive. Often, there may be other options available without the expense of going to court. If you can plan ahead before a person becomes unable to handle their affairs, this can make a huge difference in everyone's life and potentially make a conservatorship or guardianship unnecessary.
For example, your loved one may be able to sign a power of attorney enabling you to make certain decisions on their behalf. They also may be able to sign a health care proxy that allows you to speak with medical professionals on their behalf.
However, if this is not possible, you may have to seek court intervention. Before you go to court, you should understand the significance of the responsibilities you will be given if a judge approves your request. You must be financially responsible, familiar with the intimate details of the incapacitated person's needs, and ready to be accountable and responsive to the court.
Involving the Court
Courts usually prefer to appoint a close family member, such as a parent, spouse or domestic partner, or adult child, to serve as a conservator or guardian. However, above all, the court must feel confident that the person it appoints has the best interests of the incapacitated person at heart. Because of this, a court must scrutinize the guardianship or conservatorship request. In addition, if the person over whom you seek financial control has assets, you may be required to obtain a bond. The court may appoint an attorney to safeguard the interests of your loved one. A court evaluator may look into the application as a whole to determine if the court needs to be made aware of any issues.
If guardianship or conservatorship is approved, there may be continuing reporting requirements to the court that can involve the preparation of accountings and other reports. Thus, the person who proposes to take on this role must be able to handle these responsibilities in a timely manner. Being a guardian or conservator is a long-term commitment. It lasts for the rest of an individual's life unless the court appoints someone else to take your place.
If you believe it may be necessary to pursue this option, you should start the process sooner rather than later. If you do not know where to start, speaking with any advocates or social workers who are already involved in your loved one's life is a great way to begin, as well as connecting with a special needs attorney. Be sure to consult with your special needs attorney.