January 25, 2023 | Alzheimer's and Other Dementias, Caregiving, Mental Health
Let’s say you’re the primary contact or caregiver for a family member, perhaps a parent or a sibling who is living with a physical or cognitive disability. You are seeing signs that your loved one is having difficulty managing themselves or their affairs. What do you do?
Many people think first of obtaining a power of attorney (POA) for their relative’s affairs, and POAs are the most common tool for helping someone manage their affairs and making healthcare decisions based on the person’s wishes. But in some cases, a POA may not be enough to protect the loved one from potential fraud or abuse.
What is a conservatorship?
Investopedia describes conservatorship as “the designation of a conservator by a court to manage the financial and personal affairs of an incapacitated or incompetent individual, minor, or older adult with limited capacity.” The person whose affairs need to be managed is called the conservatee.
Conservatorship rules vary by state. California has three types of conservatorships:
LPS conservatorship: A temporary mental health conservatorship for people with serious mental illness who need special care. Family members or other private parties cannot start a mental health conservatorship. Typically, treatment staff at the hospital where the person is receiving care can start the process. It’s often used in cases involving a homeless individual where there is a mental health diagnosis.
Limited conservatorship: A conservatorship where the conservator’s powers are strictly limited to up to seven specific powers based on the needs of the conservatee. Those are:
- Fix the conservatee’s residence or specific dwelling.
- Access the conservatee’s residence or specific dwelling.
- Consent or withhold consent to the conservatee to marry.
- Exercise the conservatee’s right to enter into a contract.
- Give or withhold medical consent on behalf of the conservatee.
- Exercise or limit the conservatee’s right to control social and sexual contacts and relationships.
- Make decisions about the conservatee’s education.
General conservatorship: A conservatorship where the conservator has all powers and responsibilities, except ones found unnecessary.
A conservatorship and a POA are sometimes used together. The conservator might manage the conservatee’s financial affairs and make legal decisions on their behalf, while the person named as POA may make more routine financial decisions, such as paying bills or managing investments.
The downsides of conservatorship
While a conservatorship can provide important protection and care for individuals who are unable to take care of themselves, it also comes with some downsides. It can limit the conservatee’s autonomy and decision-making power. There can be a social stigma associated with having a conservatorship, which may be difficult for some individuals and their families.
In addition, obtaining a conservatorship can be time consuming and expensive, as it requires a court hearing, legal fees, and ongoing court supervision.
The benefits of conservatorship
The most important benefit of conservatorship is that it provides protection for someone who is unable to take care of themselves, and it ensures they receive the proper care. Conservatorship also ensures financial stability, provides court oversight of the conservatee’s affairs, and protects them from exploitation or abuse of their assets.
How to get started
To get started with a conservatorship, you will need to follow the procedures in your state, which often requires an attorney and can be expensive and time consuming. In California, applying for a limited conservatorship does not require a lawyer, but a knowledgeable lawyer can help ease the process and ensure you meet all deadlines. The website of the California court system offers complete instructions. Generally speaking, the process will include these steps:
- Filing a petition with the court.
- Notifying the proposed conservatee.
- An investigation conducted by a court-appointed investigator.
- A court hearing.
- Appointment of a conservator.
- Ongoing supervision.
Keeping the conservatee informed
It’s important to communicate with the conservatee, to explain the reasons behind the conservatorship, and to respect their feelings and concerns. Try to involve them in the process as much as possible, and keep them informed about any decisions made on their behalf.
If you have concerns that your older parent may be unable to manage their own affairs and may be at risk of financial or physical harm, it is important to speak with a professional such as their doctor, lawyer, or social worker who can help you determine if a conservatorship is appropriate. Our care managers at Windward, several of whom are social workers, can answer your questions and give insights into how the conservatee might react emotionally, and provide support to them during the process.