In my previous article, “Elderlaw: When Senior still has mental capacity some of the strategies mentioned primarily deal with an individual who still has the mental capacity to make most formal decisions. However, there may be a time when the caregiver may have either delayed intentionally or unknowingly, the process of getting legal issues for their parents or spouse in order. Below is what to consider should a crisis hit and you are faced with a loved one who is no longer able to make decisions for themselves.
Conservatorship
A conservator is appointed through a court supervised hearing to manage financial or personal affairs for someone who is unable to do so on their own. There are 2 types of conservators: The Conservator of the Estate and the Conservator of the Person.
- The Conservator of the Estate
- Conservator of the Person
- is appointed to deal with decisions on behalf of the conservatee. Conservators may be the same person or different people. A conservator can be selected by the individual before they lose their capacity to do so. This conservator should be someone who is well trusted.
is appointed to deal with the financial affairs of the conservatee.
A conservatee has the right to fight a conservatorship in court if they feel they have the capacity to make financial or medical decisions. If the conservatee is afflicted with dementia, the court will appoint an attorney to represent them.
Conservatorship without an Attorney
An individual should contact a probate clerk to obtain information and forms to file a conservatorship. Once the forms are completed a court hearing will be scheduled to determine if a conservatorship is granted. Again, your local senior advocacy group should be able to help you or your loved one file the appropriate forms.
Procedures
If the individual needs conservatorship and they still have the capacity to understand what it is, they should be informed. If they do not understand, and they’ve been diagnosed by their physician, then a conservatorship should be put into place. An investigation will be conducted prior to the appointment, once the proper papers have been filed with the court.The court investigator will determine if the individual understands or is suitable for a conservatorship.
The investigator is required to fill out a form stating why a conservatorship is needed and the investigation has to take place in no less than five days prior to the hearing. If the investigator recommends a conservatorship, the judge will probably follow the recommendation.If the individual is diagnosed with dementia, an attorney will represent the conservatee. To ensure this is a proper conservator for the proposed conservatee, all documents filed are reviewed by a probate examiner who posts on the internet, any corrections needed to be made a the probate court website. Any corrections must be filed 3 days prior to the hearing.
Follow-up investigations will continue after the first year has passed, and then every two years thereafter.
Once the conservatorship papers have been completed and a capacity form as been signed by a physician, the conservatorship can take up to 2-3 months from filing. If limited paper work has been filled out, or there are many corrections to be made, a conservatorship can take up to 6 months.
*credit: Elder Law and Advocacy, San Diego
