Conversations with loved ones who are declining in health and perhaps advancing in age are difficult. Such difficulty is only exacerbated when that loved one is losing their ability to make healthcare decisions on their own behalf or manage their personal or financial affairs. These are emotional conversations that may be challenging to navigate. But this post is here to assist you with that challenge: explaining guardianship and conservatorship to your loved one.
WHAT IS A GUARDIAN?
A guardian is a court-appointed fiduciary that oversees and manages healthcare decisions of their agent when that agent is determined incompetent and unable to communicate such decisions due to mental incapacity or other diagnosed condition. A guardianship may be plenary or limited. Where the guardianship is unrestricted, the guardian is solely responsible for managing all aspects of the individual’s physical and mental well-being, effectively stripping that individual of their right to make health care decisions on their own behalf. However, in Massachusetts, even general guardians are limited from certain extraordinary actions, including admitting the protected person to a nursing home or consenting to the administration of antipsychotic medication, absent Court authority. Where guardianship is limited, the guardian may be responsible for only certain aspects of the individual’s physical or mental health decision-making as the Court dictates.
WHAT IS A CONSERVATOR?
A conservator is a court-appointed fiduciary that oversees and manages the estate – in particular, the finances – of the individual sought to be protected. A conservator may be appointed where the individual, because of a clinically diagnosed condition, is unable to receive and evaluate information and has property that will be wasted or dissipated unless management is provided or funds are needed for his or her support, care, and welfare.
A conservator deals with the protection of the property and business affairs of a person needing protection. Similar to guardianship, a conservatorship may either be unlimited or limited in scope and may be limited to specific actions or specific property or may apply to all of a protected person’s property. A full conservatorship generally strips the individual of all control over their financial affairs. In such a case, a conservator must manage and protect all aspects of the individual’s finances, including assets and income, but may exercise authority only as necessitated by the mental and adaptive limitations of the protected person. Where the Court determines that a protected person maintains capacity concerning some aspects of their financial affairs, it may establish a limited conservatorship allowing the protected person to retain some level of control and management of financial affairs. Some examples of potential duties of a conservator include collecting, holding, and investing assets, paying bills, operating a business, and selling tangible personal property.
HOW DO I COMMUNICATE TO A LOVED ONE THAT A GUARDIAN OR CONSERVATOR IS NECESSARY FOR THEIR PROTECTION?
It is daunting to inform any loved one that they may no longer be able to manage their healthcare or financial affairs. However, we recommend that clients take the following approach to alleviate the concerns of the loved one sought to be protected.
First, explain to your loved one in a comfortable, home setting with other trusted friends or family members present that you are concerned about their ability to continue making significant life decisions on their own behalf. Inform the individual that the collective only wants what is in the individual’s best interests –protecting them from harm and ensuring that they, and their personal affairs, are safeguarded.
Next, explain to your loved one the aspects of guardianship and conservatorship and the specific areas in which the loved one may need assistance. We advise that the authority conferred on guardians and conservators be as limited as possible depending on the needs of the individual. Convey to the loved one, if only a limited guardianship or conservatorship is being sought, that he or she will retain certain decision-making authority over their affairs. Inform the loved one that they will continue to be involved in their affairs as much as possible in light of their condition and capacity. Moreover, an individual may only need a guardian or a conservator, depending on whether that individual has a health care proxy or durable power of attorney.
Finally, explain to your loved one that a trusted family member, friend, or professional will serve as guardian and conservator, as any qualified, suitable individual or corporation may serve as guardian or conservator of a protected person. We often recommend that for elderly individuals, their children serve as guardians or conservators. Where the conservatorship sought is complex, such as managing of various entities or properties, it may be advisable to seek the appointment of a professional conservator, an individual or, an entity. However, we generally recommend that a family member or close friend serve as the fiduciary to ensure that the protected person is comforted by having a trusted and recognizable figure playing this important role in their life.
