Protecting Adult Children With Disabilities

Getting a court conservatorship is a legal process that involves appointing a person or organization to manage the financial or personal affairs of an adult who is unable to do so themselves due to incapacity. This process can be necessary in situations where an adult becomes incapacitated due to age, illness, or disability. Heres a general step-by-step guide on how to obtain a court conservatorship:Understanding ConservatorshipDefinition: Conservatorship, sometimes known as adult guardianship, is a legal status wherein a court appoints a responsible person or entity (the Conservator) to care for another adult (the Conservatee) who cannot care for themselves or manage their own finances.Types of Conservatorship: There are two main forms of Conservatorship. A Conservatorship of the Person manages the personal needs such as healthcare and living arrangements of another. This is also known as a Guardianship. A Conservatorship of the Estate Manages financial affairs, including paying bills, talking with health insurance, and managing assets.Steps to Obtain a Conservatorship1. Determine the Need: Assess whether the adult truly cannot manage their own affairs. This often requires the medical opinion of a doctor who can perform the proper tests to determine a persons mental capacity. Many courts also require a doctors letter, verifying that the person is truly unable to manage their own affairs.2. Consult an Attorney: Since Conservatorship involves legal processes, its advisable to seek legal counsel, especially in complex cases. An attorney experienced in Conservatorships will be able to explain the process, and make sure all the requirements are met so that the process goes as smoothly as possible.3. Choose a Conservator: This can be a family member, a close friend, or a professional. The person should be trustworthy and capable of managing the responsibilities. Acting as Conservator can be a lot of work, so choose someone who can make the investment of time and energy.4. File a Petition: Submit a petition for Conservatorship to the local court. This document should include detailed information about the proposed conservatees condition and the need for conservatorship.5. Notify Interested Parties: Family members and other interested parties must be notified about the conservatorship proceedings. This also includes the person who the request is for.6. Court Evaluation: The court may appoint an investigator to assess the conservatees situation and the suitability of the proposed conservator.7. Hearing: A court hearing will be held where the judge will consider all the evidence and make a decision.8. Granting of Conservatorship: If the court approves, they will issue an order appointing the conservator.9. Fulfilling Conservator Duties: The conservator will have to manage the conservatees affairs as per the courts instructions and may need to report back to the court periodically.ConsiderationsA Conservatorship is essentially a request to take someones rights away. The Courts take this kind of request very seriously and will carefully evaluate all of the circumstances involved. Some specific court considerations are:Rights of the Conservatee: The process must respect the rights and dignity of the conservatee. Limited Conservatorship: In some cases, a limited conservatorship might be appropriate, where the conservatee retains some rights and freedoms. Duration: Conservatorship can be temporary or permanent, depending on the situation. An Emergency Conservatorship may be appropriate where the person has suffered a temporary but serious medical issue and is expected to recover after a few weeks or months.Legal and Ethical ResponsibilitiesActing in Best Interest: The conservator is legally bound to act in the best interest of the conservatee. Accountability: Regular accounting of the conservatees finances may be required. This may include filing a financial report with the Court, to ensure the Conservatees assets are managed properly and that they arent being taking advantage of.ConclusionObtaining a conservatorship is a significant legal step and should be considered carefully. Its crucial to understand the responsibilities and legal obligations that come with being a conservator. Always seek legal advice and work closely with all parties involved to ensure the best outcome for the conservatee.Remember, laws can vary significantly by jurisdiction, so its essential to familiarize yourself with the specific laws and procedures in your state or country. We are happy to help in any way we can, and initial consultations are free. Contact us at 720-500-2076 anytime with any questions.  

Why Hire an Elder Law Attorney? Elder law attorneys specialize in estate planning, incapacity planning, and end-of-life care for seniors, helping them remain in their homes and protect against abuse. They are essential in planning for the future and addressing the needs of a vulnerable population. How Can an Elder Law Attorney Help? Long-Term Care Planning: As the number of Americans over 65 is projected to exceed 80 million by 2040, planning for long-term care is increasingly important. Elder law attorneys assist seniors in creating financial plans to cover essential needs like food, rent, and medical care. They also guide clients in applying for public benefits such as Medicaid and Medicare. Housing: Many seniors wish to age in place. Attorneys can represent clients in landlord-tenant disputes, helping them navigate issues like city ordinance violations. They also protect seniors against housing discrimination under the Fair Housing Act. Estate Planning Document Preparation: Elder law attorneys draft critical documents such as wills, health care directives, and powers of attorney, ensuring that seniors rights are protected regarding retirement benefits and medical decisions. A solid estate plan reduces family stress and potential inheritance disputes. Incapacity Planning: Attorneys can help document care wishes for seniors facing disabilities or conditions like dementia. With the rising number of Alzheimers cases, having a plan for incapacity is vital for protecting financial and physical well-being. Guardianship: In cases where an older adult cant make decisions due to conditions like dementia, attorneys assist family members in securing guardianship, which involves legal proceedings and court hearings. They can also advocate for the seniors autonomy by exploring alternatives to full guardianship. Combating Elder Abuse: Elder abuse is a significant public health issue, affecting one in six adults aged 60 and older. Elder law attorneys are well-versed in the rights of seniors and can provide legal recourse against abusers while implementing safeguards like advance directives to protect against financial exploitation. By addressing these diverse needs, elder law attorneys play a critical role in supporting the aging population and ensuring their rights and well-being are protected. Editors Note:  This article is for informational purposes only and is not intended to be legal advice.This article was submitted by Ashley Day, Esq.  Reach her at 251-277-3377.      

Guardianship Versus Powers of AttorneyOne of the most common questions I get as a practicing elder law attorney is, what is the difference between guardianship and a power of attorney? A power of attorney is a document that a person executes when they are competent to appoint someone to be their agent for either healthcare matters, financial matters or both. The defining characteristics of powers of attorney is that it is a voluntary action by the person, and it can be revoked at any time so a power of attorney cannot be used to trump someones free will in order to place them in a facility for example, against their wishes.A guardianship is a process where one typically files a pleading, requesting to be appointed as a persons guardian.  In this case, we must demonstrate that the person we seek to protect is incompetent to manage either their healthcare, or their finances, or both.The guardianship typically comes about in two primary ways. First, if the person we seek to protect never executed a power of attorney, and now is incapable, a guardianship would be necessary in order to handle things like an admission to a hospital or long-term care facility because no one has been appointed to consent to treatment for them.  Second is a situation where the person we seek to protect is actively combative to the plan in place to handle their health matters. In this case, we must seek guardianship in order to overcome their wishes, particularly if they are unwise. For example, if your parent develops dementia, but insists that there is nothing wrong with them, that they should continue to drive and live independently and manage their medication, despite evidence that those things are dangerous in their current condition, guardianship is typically necessary in order to restrict their freedom.In some states, like Florida, the guardianship will also cover financial matters.  in Alabama, the conservatorship is established at the same time as a guardianship in order to handle healthcare matters for those cases where there is no power of attorney, and the conservatorship is necessary in order pay their bills, access finances, and so forth.To establish financial guardianship, no matter what its called, we typically must be bonded so the person who is applying must be credit worthy and able to obtain a bond from a surety company. This ensures that the persons financial well-being is well taken care of.  If there is no one available, or if no one wishes to handle finances, every county typically has, or can appoint someone, as a county conservator to serve as that persons conservator.  This is helpful in cases where its a very difficult or complex financial situation.  Then it may be preferable to have a professional appointed and giving a relatively small fee for doing so.  This leaves the guardian to care for the healthcare of the individual without the added stress of complicated financial matters. Contact an elder attorney for more information about what your needs are and please dont put off executing a power of attorney in favor of those people that you trust as soon as you can to avoid what could be difficult and unnecessary proceedings in Probate Court down the road.This article was contributed by Kyla Kelim with Aging in Alabama.  Kyla is an experienced Elder Law attorney.  Contact Kyla at 251-281-8120.