Guardianship and Conservatorship Who Has First Rights?

September 22, 2008 by  
Filed under ALZHEIMER'S

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

Advanced Directives and Living Wills

April 28, 2008 by  
Filed under ALZHEIMER'S

When we were kids, we used to put our hands over our ears and hum loudly or say, “I can’t hear you.”  It was our way of telling the other child who was speaking that we were not interested in, and would not listen to whatever they had to say. 

Then there’s my youngest son.  He covers his face with his favorite blanket.  That’s his way of “hiding.”  He figures, if he can’t see me, then I can’t see him.

What’s the point?  I’m glad you asked.

The point is that, we adults do the very same thing. We act as if not talking about end of life issues will keep us from having to deal with them.  We put our proverbial hands over our ears or blankets over our heads as if to declare, “I can’t hear it and I can’t see it, so it must not be. “

This is a sensitive subject for me, as neither of my parents made their wishes clear.  Neither had living wills or Advanced Directives.  So, I was forced to make some very difficult decisions in both cases.

When it hits you that you have very little time with someone you love very much, the last thing you need to layer onto that very difficult time is more questions.  Especially questions that can, at least to some degree, be handled in advance.

Making a decision now will help to keep peace.  Grief impacts everyone differently.  Some people would rather have their loved ones alive no matter what.  Others can’t bear to see them suffer. Take that burden off of them. Make your wishes known, in writing.

What is an Advanced Directive?

An advanced directive is simply giving directions (in advance) regarding end of life issues.  Thinking about the end of life BEFORE it comes.  Advanced directives can be verbal.  Certainly not the best, but it does make the decision making process a little easier if someone can remember what a person said.  A Living Will is the best.  Click here for a sample of a living will.  It’s a written, legal document that explains your wishes regarding tube feeding, dialysis, invasive procedures, living for an extended period of time on a respirator, etc.  I’ll discuss Do Not Resuscitate (DNR) orders in a seperate post.

So, whether or not you have Alzheimer’s disease, whether you are sick or healthy, do yourself and the loved ones in your life a favor.  Take your hands off your ears and the blanket from over your head.  Please, do a living will and encourage your loved ones to do it too.

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NOTE: The contents in this blog are for informational purposes only, and should not be construed as medical advice, diagnosis, treatment or a substitute for professional care. Always seek the advice of your physician or other qualified health professional before making changes to any existing treatment or program. Some of the information presented in this blog may already be out of date.