You may think that you have to get a guardianship and/or conservatorship when someone close to you is losing capacity. A guardianship allows the court to appoint someone to make decisions over a person when the person can no longer do so themselves. A conservatorship is the same concept except over that person’s property. Some states just use a guardianship to cover both roles. Obtaining a guardianship over someone would give you the most legal authority to make decisions on their behalf. However, the potential benefit of a guardianship may not outweigh the cost in your situation. Here are some questions you should ask yourself, and the attorney you consult with, when considering pursing a guardianship:
What are you currently unable to do without a guardianship/conservatorship?
You probably need a guardianship if the potential ward is a danger to themselves or others, refusing necessary medical care or generally unstable. You will want to consider an emergency petition to get appointed sooner if the potential ward is a danger to themselves or others. A guardianship would allow you to admit the ward to a hospital or other healthcare facility. A health care power of attorney probably does not give you this power and if it does, it will not be as forceful.
You probably need a conservatorship if your mother has dementia and is writing checks to strangers on a daily basis. However, if all of her assets are in a trust and she is no longer acting as trustee, this should not be a concern. Further, a representative payee manages funds from Social Security. If Social Security income is the only asset, you may just need to become the representative payee.
What is the cost of a guardianship?
Getting appointed guardian and/or conservator will probably cost you at least few thousand dollars in attorney’s fees. Depending on your county/state, you may also have to pay something like a couple thousand dollars in court fees. In Arizona, there will be a court appointed attorney to represent the potential ward’s interest. There will also be a court appointed investigator who acts as a neutral party in reporting whether a guardianship is necessary.
You will need to get a doctor’s report saying that the potential ward is incapacitated and in need of a guardian. You will have to complete an annual guardian report. The report includes information like the ward’s most recent doctor appointment, how often you see the ward, have there been any changes in the ward’s health, etc. As conservator you will have to provide an annual accounting to the court.
You should consider alternatives to a guardianship and/or conservatorship that are less costly and time consuming, if they accomplish your main goals.
Are you a named agent under powers of attorney?
If not, does the potential ward have capacity to execute new powers of attorney. Financial and health care powers of attorney may give you all the authority you need. If all you need is access to medical and financial information so you can help make medical decisions and manage assets, it probably is not worth pursuing a guardianship/conservatorship. If you need to prevent the potential ward from making irresponsible medical or financial decisions on their own, a guardianship/conservatorship would be more appropriate.
Conclusion
You have considered all of these factors and, hopefully, consulted with an attorney. Now it is your decision whether to pursue a guardianship. It may be the case that you can obtain a doctor’s report but do not necessarily need a guardianship. You may be able to provide the support and care required through powers of attorney. Ultimately, you should do what makes sense and feels right to you.
