Most people know, at least in theory, that they should begin planning their estates sooner rather than later. They know the longer they put off writing their wills, establishing advance directives, and taking care of other aspects of estate planning, the more likely it is that they, and their loved ones, will suffer the consequences. Among those possible consequences is needing to go to court to establish a guardianship or conservatorship for an incapacitated family member.
A guardianship or conservatorship becomes necessary when someone becomes incapacitated or otherwise left unable to care for their own legal and financial interests. A guardian handles legal and personal matters, including medical decisions, and can include financial decision-making authority. A conservatorship is a less restrictive on the incapacitated individual and a conservator generally handles only financial responsibilities. If a person requires a full guardianship, a single person can be designated as both guardian of the person and guardian of the property to handle medical, personal and financial decision-making, but sometimes two (or more) separate people will be appointed in those roles, depending on what the court feels would be most appropriate.
For a guardian or conservator to be appointed, an interested party, typically a family member, will go to the Surrogate’s Court and make an application for a guardian or conservator to be appointed. The application must be accompanied by two affidavits from two independent doctors confirming the individual’s incapacity. A Superior Court judge is assigned to handle the case and will first appoint an attorney to represent the person and report back to the Court regarding the alleged incapacitated person’s condition and circumstances. The judge makes the final determination as to whether a guardian or conservator is necessary and if so, who would best be able to care for the interests of the individual in question. The person ultimately appointed may be a family member, or it may be someone else entirely unrelated, if no living relative is considered suitable for the role. Once the court has determined that a specific individual or multiple individuals are appropriate to become a guardianship or conservator, they will be appointed and will be legally responsible for protecting the well-being of the incapacitated individual, known as a ward.
A guardianship or conservatorship typically becomes necessary when a person becomes incapacitated without a power of attorney or healthcare proxy in place, although they may also be appointed to care for a minor or other individual who cannot handle their own legal and financial matters. The guardian or conservator is then responsible for ensuring they protect the best interests of their ward and can be held accountable by the court for violating that duty by exploiting, neglecting, or abusing their ward. Depending on the nature and severity of their violation, they can face reprimand, fines or even incarceration.
Guardianships and conservatorships, while useful, are not necessarily the most ideal arrangements when handling an elderly family member in particular circumstances. While a judge may decide who becomes the guardian or conservator, that choice is not always the same one the incapacitated one would make if they had a say in the matter, especially if there are family members who disagree over who should be appointed. Some people may have clearly lost capacity to adequately handle their personal matters but retain enough cognition and speech to resist cooperation and voice objections to a court proceeding. It is often the best arrangement for an imperfect situation, but one that unfortunately can result in litigation as family members argue over who ought to be responsible for their elderly loved one’s interests.
This is part of why it is so important to make sure that you plan your estate well before you suffer any medical issues that might impair your mental capacity. If you have a power of attorney in place, for example, you will have no need for a guardian, because your legal and financial matters will be handled by whomever you granted your power of attorney. Likewise, if you have a healthcare proxy in place, you can make sure that any medical decisions that need to be made on your behalf will be made by someone you trust. Guardianships and conservatorships are an emergency measure intended to handle situations where a power of attorney or healthcare proxy are not in place, and you can easily spare your loved ones that hardship by making sure your affairs are in order first.
Do not wait until it is too late to begin planning your estate. The attorneys at the Law Offices of Hunziker, Jones, and Sweeney understand that the aging population has specific and diverse needs. The firm helps seniors and their family by handling all aspects of elder law including end of life planning, asset preservation, Medicaid planning, and trusts and estates issues. If you need to consult on elder law issues, call The Law Offices of Hunziker, Jones & Sweeney at (973) 256-0456 or fill out our contact form for a consultation.