It is estimated that nearly four million Americans suffer some form of mental dementia, most commonly Alzheimer's Disease. That figure is expected to triple by 2050. With the onset of dementia comes the growing need for assistance with such common daily tasks as dressing and feeding oneself, administering to even modest financial matters, and providing for one's own medical care. If you have a loved one who has difficulty making sound financial and lifestyle decisions, contact an experienced elder law attorney to discuss the possibility of establishing a guardianship or conservatorship to aid your loved ones.
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Guardianships and Conservatorships
Guardianship and conservatorship questions may arise when an elder relative or older friend shows signs of incapacity or cannot handle personal care or financial matters. A guardian or conservator is only appointed if a judge determines the person, frequently referred to as a ward, is incapacitated or incompetent, depending on the law of the state. The guardian or conservator could be a spouse, child, friend or other interested party. To determine whether a guardianship or conservatorship is appropriate in your situation, contact an experienced elder law attorney from The Elder & Disability Law Center in Washington, DC.
Guardianships and conservatorships — what's the difference?
Depending on the state, guardians and conservators may have different roles. In states with both guardians and conservators, guardians' duties typically involve providing for the physical and mental health of the ward while conservators typically handle the ward's financial matters. But some states use the term "guardian" to describe both of these roles, and some states may use the term "conservator." Regardless of the term used, if the judge determines the ward is incapacitated, the judge must also determine the specific duties of the guardian or conservator, including ensuring appropriate physical or medical care for the ward, managing the ward's finances, and representing the ward in lawsuits and other matters. In many states, the ward will retain the right to vote unless the court specifically orders otherwise.
The ward's rights
The ward may retain the right to control many aspects of his or her life, depending on the circumstances. For example, the ward may be able to handle personal care but unable to manage his or her finances (or vice versa). In those cases, the guardian or conservator only will be appointed to handle matters that the ward cannot handle. While exercising their powers, guardians and conservators are bound to employ reasonable care. But generally, guardians and conservators are not legally liable to the ward or to third parties unless they engage in willful misconduct or gross negligence.
Applying for a guardianship or conservatorship
To initiate a guardianship or conservatorship, an interested party must file a petition to the court. The petition will state the petitioner's relationship to the prospective ward. The petition also will state facts that show that the proposed ward is incapacitated and the need for a guardian. The petition should detail the ward's property and assets. The judge will examine the petition and hold a hearing that the proposed ward must attend if he or she is able. After the hearing, the judge will decide if the proposed ward needs a guardian, conservator or both. Wards have the right to appeal a guardianship or conservatorship determination.
Once appointed, a guardian or conservator must be discharged by the judge to end the guardianship or conservatorship. Reasons for discharge include the death of the ward or conservatee, the ward's return to capacity or the guardian or conservator's inability to fulfill his or her duties.
Speak to an elder law attorney
Friends and family members must confront difficult questions and emotions if they believe that a loved one can no longer care for himself or herself. The role of guardian or conservator is very complicated and requires dedication. A skilled elder law attorney from The Elder & Disability Law Center in Washington, DC, can help you find answers to guardianship and conservatorship questions, guide you through the processes of guardianship and conservatorship and help you comply with the court's orders.
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