Conservatorship and Guardianship

If your elderly parent or other family member has become physically incapacitated or mentally compromised, a court can appoint you or another caregiver as a legal guardian. Guardianship proceedings can be tense if the person protests or if siblings disagree about the need for intervention or who should be appointed. There is not always a bright line when aging parents or disabled family members can be deemed a danger to themselves or mentally unfit. Sometimes there is a slow decline from illness or Alzheimer’s. Sometimes the change occurs swiftly after an accident or a spouse’s death.

There are two separate but related legal actions that may apply:

  • Conservatorship is recognition by the court that a person is not mentally incapacitated but nonetheless is unable to manage his or her affairs or provide self-care because of advanced age, illness or physical infirmity. Conservatorship cannot be established over the objections of a mentally fit person.
  • Guardianship requires a finding by the court that the individual is mentally incapacitated and “unfit and unable to govern him or herself and manage his or her affairs.” A guardian can be appointed over the objections of the unfit person, unless it conflicts with an existing power of attorney.

A petition for guardianship requires affidavits from a physician and a psychologist that the person is unfit. The court will also hear testimony from family members and caregivers for or against a finding of incompetence. When you initiate guardianship proceedings, the court will also appoint an attorney to advocate for your family member. The attorney is bound by law to assert the person’s wishes, including opposing the guardianship or requesting a limited guardianship.

Our role is to prepare evidence that your loved one could come to harm, physically or financially, without the appointment, and that you are a qualified candidate who would act only in the best interests of that family member. Our lawyers can also establish special needs trusts to preserve assets for a disabled family member who is receiving Medicaid assistance or other government benefits.

The elder law attorneys of Capehart Scatchard provide compassionate guidance and seasoned legal counsel for this difficult process. We invite you to arrange a consultation with Capehart Scatchard’s elder law attorneys.