This is Part One in a Series. Look for Part Two next week.
As the mother of minor children, I have absolute authority to tell them what they can and cannot do, when and where they can do it, what they eat, when they go to bed, what they can and cannot spend their money on, who they can associate with, and whether or not they take medication or have surgery. I am their legal parent, also their biological parent, and their legal guardian.
All this goes without saying. It also goes without saying that once they become adults, they are technically in charge of themselves, and although I expect my influence to weight heavily on their decision making process, unless they live under my roof, and even then, there isn’t a whole lot I can do if they choose to disobey me. I go from authority figure to (hopefully) trusted advisor.
This is the normal, expected course of events. As we all know, very little about life is normal or expected. Some children are born with birth defects or disabilities that mean they will not be able to care for themselves when they are 18, or even 25 or 40. Tragedy strikes, and accidents occur, and disabilities happen later in life which likewise prevent people from caring for themselves.
On the other end of the spectrum, as our parents and other relatives age (we do not: we stay the same age no matter what. This is what I keep telling myself, anyway.) the tables turn and we often find ourselves in a caretaking role.
There is a difference between a physical and mental disability. Someone may be physically frail and unable to do physical tasks for his or herself, but mentally capable of making decisions about what needs to be done and what should not be done. Conversely, someone may be strong as an ox and apparently healthy enough to outlive us all, and yet incapable of rational decisions.
The law provides some help in half of these situations by way of guardianships and conservatorships. The law does not get involved in matters of physical health. Mental health, however, has some options. Growing old is not for the faint of heart. There comes a time in many people’s lives that after a lifetime of independence it is too dangerous for them to drive. They are incapable of managing their own money. They do not make rational decisions about their own medical care. In these cases, you may wish to become the guardian and/or conservator of your parent or other loved one.
Guardianship is more or less exactly what it sounds like. Just as I can make decisions on behalf of my children, and just as they are legally incapable of making a decision with out me, if I had guardianship over my mother the same rules would apply. My children cannot sign a contract, make medical decisions, go to someone’s house, or decide where they live without my involvement: if I were her guardian, my mother couldn’t either. I make those decisions for them, with varying degrees of their input depending upon the decision. I could take my mother’s car keys from her. I could, effectively, ‘ground’ her. Revenge fantasies aside, sometimes these are sad and difficult but necessary tasks.
Guardianships aren’t issued just because you have decided that Mom is senile or making bad decisions. This is something that you may broach with your mother’s physician, but you need a doctor who is willing to go on record, under oath, as saying that your Mother is incapable of making rational decisions — that she is incapacitated. This is different from your Mother making decisions that you think aren’t advisable. Reasonable minds differ. This body of law only applies when one of the minds is clinically unreasonable – which is why a doctor has to get involved.
Conservatorships are like guardianships, but they are about money or assets. Odds are good that if one’s mental capabilities are limited to the point where one cannot take care of day to day decisions, he or she can’t take care of larger sums of money, either. Sometimes — often — the conservator of a person is the same as the guardian. Sometimes not. Everyone has a different skill set. It may be that you are a CPA and great with money, but your brother has a better relationship with your mother and/or lives considerably more locally. You can manage money from a distance, but not take care of a person. Also, your credit has to be good for the probate court to appoint you as a conservator. You will be required to get a bond, which is like an insurance policy which will pay back your mother (called her ‘estate’, even though she is very much alive) for anything you may have squandered or mismanaged. Insurance companies will not issue you a bond if you don’t have a good history of managing money.
Conservatorships are also sometimes done for other reasons. If a child comes into money for whatever reason — whether it is through an inheritance without a trust, a law suit settlement, money earned as a child star, or some other reason — to the tune of more than $15,000.00, rather than just deposit it in the child’s college fund or a savings account for him or her, a conservator would need to be appointed to manage the money on the child’s behalf. Conservators have to file annual returns with the probate court and get approval for expenditures and certain investments.
There is a lot of oversight, and this isn’t necessarily a bad thing. Unfortunately, in my years of practicing law, I have seen access to money do crazy things to otherwise rational people. It is a short leap from “my disabled daughter/father needs a van with a lift for her/his wheelchair” to “my disabled daughter/father needs a six bedroom house in my name with a built in sauna s/he could never use because a stressed out caretaker is a bad idea.” Most folks are honest and try to do the right thing, but there are enough people who don’t to make the rules necessary.
Obviously, these are very complicated legal issues, fraught with emotional difficulties. Requests for either a conservatorship or guardianship can sometimes start a family war — and sometimes they can prevent war. Don’t make any of these decisions without talking with a medical AND legal professional. There are no good and happy answers in many of these cases — sometimes the best you can do is make it less bad.
For estate planning tips which can potentially alleviate the necessity of guardianships and conservatorships, please read next week’s “Legalese” column.
This article was written by a lawyer, but should not be considered legal advice in any way, shape, or form. It is written for general (and generally vague) informational purposes only. In order to properly evaluate your case, a lawyer must examine all the facts and circumstances that are particular and personal to your situation.