In estate planning, attorneys often emphasize the importance of avoiding guardianship and conservatorship. However, achieving a world without these measures requires proactive planning and reliable family members willing to assist. While ideal conditions exist for some, many individuals find themselves facing situations where guardianship and conservatorship become crucial.

Increasingly Common Situations

• Seniors arrive, often accompanied by their children or children-in-law, after mental incapacity has set in. Although they have family members willing and able to care for them or manage their affairs, they lack the necessary delegation documents to authorize these helpers as agents.
• Seniors possess documents naming individuals, but these people are deceased, unavailable, or unwilling to serve.
• Trusted individuals have turned exploitative or abusive toward seniors.
• Seniors may fall victim to fraudulent schemes.

Various forms of elder abuse, including financial exploitation and emotional manipulation, pose significant challenges. This issue parallels the public awareness and legislative action seen in cases of child and spousal abuse in previous decades.

Crisis Situations

Seniors without proper delegation planning may face crises where they endanger themselves or others due to their condition. Even with voluntary delegation plans in place, seniors may refuse necessary care, placing themselves at risk.

Adult Protective Services

In emergencies, contacting Adult Protective Services (APS) can be vital to safeguarding seniors who refuse cooperation. APS, a state agency usually housed within the department of human or social services, intervenes to protect vulnerable adults.

Seeking Court Protection

In situations where Adult Protective Services may not be involved or where the senior is unwilling or unable to sign voluntary delegation documents, guardianship and conservatorship may be necessary if the senior meets the standards of incapacity. In rarer cases, involuntary commitment may be required, especially if mental illness other than dementia is evident, necessitating placement in a hospital psychiatric ward for evaluation.

Guardianship and Conservatorship Defined

• Guardianship: Appoints a guardian to make personal care decisions for the protected person.
• Conservatorship: Appoints a conservator to manage the finances and assets of the protected person.

Compensation of Fiduciaries

Fiduciaries are typically entitled to “reasonable compensation,” determined based on factors like time spent, the complexity of the work, and lost opportunities. Unlike some state probate codes for Personal Representatives of estates, compensation for conservators or guardians isn’t tied to a percentage of the protected person’s assets they manage.

Imposing Minimum Restrictions

The probate code aims to limit restrictions on the rights of adults under guardianship or conservatorship to only what’s necessary for their protection. This is because these restrictions are similar to civil imprisonment. The goal is to let the individual make decisions about their life, care, and finances whenever possible, which helps keep them engaged and mentally active. There’s a growing movement to enhance decision-making by adults under guardianship or conservatorship nationwide. However, allowing the protected person to make more decisions can be challenging for the fiduciary, as they can’t make unilateral decisions when the protected person still has decision-making power. If the protected person’s decision-making hampers necessary actions, the fiduciary can seek guidance or a court order.

Conclusion

While avoiding guardianship and conservatorship is ideal, these measures are often necessary and beneficial. Court supervision can ensure accountability and sound decision-making in challenging circumstances, ultimately safeguarding the well-being of vulnerable individuals.

For further discussion or inquiries, please don’t hesitate to contact our office.