Conservatorships have made headlines over the last 12 months. Most recently, Britney Spears’ family drama has played out in the international news, as she attempts to end a conservatorship that was placed on her in 2008 when she was reportedly experiencing mental health issues which is what has led so many to ask just what is a conservatorship in the first place. Spears is just 39 years old, but conservatorships and guardianships are most often placed on older adults.
The 2020 movie I Care A Lot, which follows a con who seizes seniors’ assets as a court-appointed guardian, is a made-up comedic thriller about the legal relationship between two individuals. Rosamund Pike, who plays the con, won a Golden Globe for Best Actress in a Motion Picture Musical or Comedy or Musical for her performance.
Though the real-life drama of Spears and fictional story in I Care A Lot make conservatorships sound horrible, it’s not so cut and dry. Let’s discuss what a conservatorship actually is, as well as the pros, cons, process and alternatives.
What Is A Conservatorship?
An elderly conservatorship, a term used interchangeably with elderly guardianship, is a legal relationship. These relationships are formed when a person can no longer care for themselves, and a court appoints someone to look after them.
What qualifies as being unable to care for oneself?
It could mean several things, including not being able to remember to take vital medications because of a condition, such as dementia. Other times, an individual may not be able to perform basic hygiene like bathing regularly or they become incapable of managing their finances. In the eyes of the court, a conservatorship is the safest and healthiest measure to ensure the older adult’s needs are met.
Benefits of a Conservatorship
If your only context for conservatorships comes from watching I Care A Lot and hearing news about Britney Spears, you may think they’re completely unacceptable. It’s actually a bit of a shame that many people respond to the question of “what is a conservatorship?” with completely negative answers as their intention is good. Like many things, it’s a legal concept that has been taken advantage of over the years, causing dire exploitation of many older adults, but if you simple look at the legal concept, conservatorships can be quite positive if used as intended.
Conservatorships can help the older adult receive care.
Not taking medication can be life-threatening, and forgetting to pay bills can have legal ramifications. If an older adult is incapable of doing these things themselves, a conservatorship is a way to ensure that someone else assists or does these tasks on the individual’s behalf. Sometimes, an individual may not want assistance and refuse it, but a conservatorship helps them get it.
Conservatorships can protect the older person.
Done ethically and correctly, conservatorships can reduce the potential for foul play because the court system oversees them. The conservator is required to file reports regarding all transactions made using the conservatee’s assets, such as paying off debt. These documents are like checks which can help ensure that the conservator doesn’t use the elderly individual’s money to pay off their own debts.
Conservatorships provides an objective person to oversee an older person’s assets.
When a loved one is in decline, it can, unfortunately, bring out the worst in people who have different ideas of how their funds should be used or how they should receive care. Done correctly, a conservator will be an objective person who always keeps the older adult’s health and safety top of mind.
Cons of a Conservatorship
Though conservatorships can provide legal structure and assurances a person will be cared for, there are several drawbacks as the concept can be exploited.
Conservatorships are time-consuming
There are a ton of items to track like every transaction made using an individual’s assets. This requirement can be burdensome for conservators. Plus, court hearings are often mandatory.
Conservatorships are costly
Individuals need to hire attorneys and pay them. Court filing and procedural fees can also add up. Conservators, whether they are a professional or a person’s family members, can receive money from the conservatee’s estate. That may cause hard feelings between other family members not appointed as the conservator or between conservatee and conservator.
The person under a conservatorship loses rights
The conservator will go from being independent to being stripped of the right to manage aspects of their life, including finances. Though sometimes this is necessary, it can feel like a loss of privacy and independence which is why many people have a negative response to them.
What the Conservatorship Process Looks Like
Filing for a conservatorship can be a lengthy ordeal, and different states have different requirements. But generally speaking, the legal process for conservatorships looks like this:
File a petition for appointment of conservatorship in court
This petition will include the older adult’s name and why the conservatorship is necessary. Who can file the petition? A spouse or domestic partner of the older adult, one of their friends or relatives, a state or local government agency or the older person themselves.
Let people know
The older person and their family must be informed of the petition.
A court investigator will look into whether or not the conservatorship is warranted.
A judge will review the petition, listen to statements and make a decision as to whether or not the person can care for themselves. If they cannot, the petition will be granted. Otherwise, it will be rejected.
Alternatives to Conservatorships
Because of the cons of conservatorships, people often seek other avenues first to help elderly individuals who are declining physically or cognitively. These alternatives might include:
A living trust
While an older adult is still considered legally competent, people can set up a living trust. It’s revocable and entitles the older person to designate a person to handle their finances. This option gives the person control and can allow for a conversation and transparency between the individual and their friends and loved ones.
Power of Attorney
A power of attorney is someone selected by an individual to act on their behalf. People often designate a power of attorney before going in for surgery or if they receive a terminal diagnosis that will involve cognitive decline, such as Alzheimer’s Disease. Again, an older person must be willing and able to make decisions on their own when a power of attorney is set up. But having control over who they are designating as power of attorney can allow them to maintain dignity during what can be a difficult process.
This alternative allows individuals to prepare for just-in-case scenarios. Some jurisdictions enable older adults to select a standby guardian who can legally act on their behalf if or when they become incapable of doing so themselves.