Guardianships and Conservatorships
Guardianships and Conservatorships are legal tools that allow a third party (such as a family member) to assist an individual who does not not have the legal capacity to manage some or all of their own affairs..
One difficult issue families often face is the unwillingness of persons with diminished capacity to agree to treatment that will assist them. Recommended treatment may involve weekly meetings with a doctor, therapist or case manager. Other forms of treatment might include taking medication, such as mood stabilizers or antipsychotic medication.
Many patients do improve with some form of treatment; however many are simply not capable of evaluating the appropriate form of treatment, and then seeking and following up to receive it themselves. This can be an emotionally trying time for family members seeking to assist. Blake Law will provide the legal counsel, information and support you need to take this challenging step so that your loved one can find relief.
Individuals often have assets in their own name, or which they are entitled to under Trust, which they do not have the capacity to manage. These individuals often subject their estates to great waste through financial mismanagement. Once money is wasted, it can be hard to recover under the law. Quick action is critical at times when family members may have these concerns.
Although you may have suspected for some time that something was wrong, guardianship and conservatorship cases are sometimes precipitated by one drastic, catalyzing event. Your family member may have gotten in trouble with the law, or may have been taken advantage of by an unscrupulous con artist. We recommend reaching out prior to such a major event.
Guardianship gives a third party (usually a family member) the legal authority to make decisions- for a person with some form of reduced capacity
Conservatorship gives a third party authority over the finances and business affairs of a person who does not have capacity to manage some or all of their own financial affairs.
The Attorneys at Blake Law can discuss the specific situation you are facing and what legal options are available to assist your loved one.
In order to establish guardianship or conservatorship and to delegate decision-making authority for an individual, the courts must first determine if the person in question lacks the requisite capacity. This decision will be made at a Guardianship or Conservatorship hearing in a probate court. The court will examine how the person handles key aspects of daily life: how he or she handles finances, health care and daily living activities.
While your family member may not be functioning as fully as you might hope, the court will want to determine if the person has sufficient capacity to safely complete the tasks they need to. There is a preference for actions that minimize intrusion into the person's affairs. If the family member is found to lack the capacity to manage his or her own affairs , a guardian and/or conservator will be appointed by the court with only those powers necessary to protect the person while minimizing intrusion into their life.
We pride ourselves on our willingness and desire to work with families to craft limitations to Guardianships and Conservatorships that allow individuals to receive the treatment they need, protect their assets for their benefit, and also respect their individual rights and need for some autonomy in those areas they can manage their own needs.
The person being evaluated at a competency hearing has a right to legal representation, to speak in his or her own defense. If the person cannot afford legal counsel, the court will appoint an attorney for him. (This seems too definitive maybe as in cases where there is no extraordinary authority the Court's often won't assign counsel….).
At of Blake Law our attorneys have helped hundreds of families secure guardianship or conservatorship for elderly, disabled, or mentally ill family members. Both guardianship and conservatorship require court approval and may or may not have the approval of the person whose interests are being protected.
Myth: A mentally ill person is, by definition, not competent to manage their own affairs and a judge will always grant guardianship and / or conservatorship.
Fact: People who have a mental illness are presumed by the court to have capacity to manage their own affairs unless there is evidence proving they lack such capacity Not every person with a mental illness requires a Guardianship or Conservatorship. In some instances aTrust, Durable Power of Attorney or Health Care Proxy may be a more appropriate legal tool. Our attorneys will gain a complete understanding of your particular situation and will advise on the options your family has.
Myth: A person with a mental illness must display extreme or violent behavior before a judge will grant guardianship.
Fact: Guardianship is more available than people have been led to believe. The court will seek to protect persons with reduced capacity.
Myth: Guardianship and Conservatorship is intrusive and takes away the person's rights and liberty.
Fact: The intrusion of a Guardianship or Conservatorship is generally confined to the areas of life in which the person is not capable of making sound decisions. In our experience, most Guardians and Conservators are very prudent about when they exercise authority. In those cases where they are not, Guardians and Conservators can be removed and replaced.
The formal court involvement in guardianship or conservatorship can be a benefit. A formal accounting of all expenditures must be made to the court. This can assure concerned family members that the financial affairs of the dependent individual are being handled properly. An annual care plan filed with the Court provides an update for families as to the status and wellbeing of a loved one under guardianship.
Each situation is different. Let our experienced attorneys help you determine if guardianship, conservatorship, Trusts, a Health Care Proxy, aDurable Power of Attorney or some other mechanism is the best option for your family and your family member. Contact our office to speak to an attorney at (617) 723-3224. M. David Blake