Guardianship and Conservatorship Who Has First Rights?

It’s obvious to you, other family members and even friends that something is awry with your loved one. It’s serious enough that you and others have begun to think about taking over the financial and medical affairs of the one who is showing serious signs of dementia and is clearly unable to independently handle day to day responsibilities.

To make matters worse, your loved one does not have a living will. Nor does anyone in the family have Durable Power of Attorney, which gives the legal right to handle financial and medical issues on your loved one’s behalf.
This is where the legal terms Guardianship and Conservatorship come in. Let me give you definitions before we go any further.

Guardianship— A Court-ordered relationship between a person (called a Guardian) who has been appointed to care for the financial (Guardian of the Estate) and/or personal (Guardian of the Person) matters of another (called a Ward). (www.legalhelpmate.com)

www.Elderangels.com provides insight on conservatorships:

Conservatorship—There are two types of conservators. Conservator of the Person and Conservator of the estate.

Conservatorship of the Person:
The conservator arranges for the client’s care and protection, determines where he or she will live and makes appropriate arrangements for health care, housekeeping, transportation, and personal needs.

Conservatorship of the Estate:
The conservator manages the client’s finances, locates and takes control of the assets, collects income due, pays bills, invests the client’s money, and protects the assets.
Conservatorships are also court-ordered relationships. In many circles the terms are used interchangeably.

Here’s a question from a reader:

“I would like to know who would be considered first to be given Guardianship or Conservatorship of a person with Alzhiemer’s? Would it be a family member or a girl/boyfriend?”

Great question. The simple answer is that it varies by state. Most states have laws that actually provide a pecking order, if you will, as to who gets first shot at becoming legally responsible.

According to www.seniorhousingnet.com here’s how Judges select conservators.

When a conservatorship petition is filed in court, a judge must decide whom to appoint. Often, just one person is interested in taking on the role of conservator — but sometimes several family members or friends vie for the task. If no one is suitable is available to serve as conservator, the judge may appoint a public or other professional conservator.

“When appointing a conservator, a judge follows certain preferences established by state law: Most states give preference to the conservatee’s spouse, adult children, adult siblings or other blood relatives. But a judge has some flexibility; he may use his discretion to pick the person he thinks is best for the job. Without strong evidence of what the conservatee would have wanted, however, it is unlikely that a nonrelative would be appointed over a relative. Because of this, conservatorship proceedings may cause great heartache if an estranged relative is chosen as conservator over the conservatee’s partner or close friend.”

As you can imagine, it can get pretty ugly. That is why I continually and not so gently URGE you to act BEFORE it gets to this point. Have the difficult conversation and get the living will or Power of Attorney in place before you have to take drastic measures like filing for conservatorship or guardianship