A Guardianship and/or Conservatorship are options a parent, adult child, or loved one should consider in order to protect and care for an incapacitated family member or friend. Guardianships and Conservatorships are obtained through a Court process known as a Protective Proceeding.
The Difficult Questions
Families often face difficult questions when a parent or loved one begins to show signs that they need help taking care of themselves. Often the questions are: when does my loved one really need help and what options do I have to help them? Fortunately, there are answers to those questions and options available to help you protect your loved one.
A guardianship allows the Guardian to provide physical care for a Protected Person or engage a professional to provide the care. For example, a Guardian will select an assisted living facility for the Protected Person and will work with the facility to determine the correct level of care.
A conservatorship provides the Conservator with the ability to manage the Protected Person’s finances. For example, a Conservator will be responsible for paying the Protected Person's bills and accounting for the receipt and use of any income the Protected Person receives.
Formal Protective Proceeding for Guardianship and Conservatorship: If your loved one is already incapacitated, then you may need to go through a formal process known as a Protective Proceeding. Protective Proceedings may be initiated by anyone who wants to care for and protect an incapacitated individual’s health and/or estate.
Depending on the scope of the Protective Proceeding, the court will examine whether the incapacitated individual (“Protected Person”) is able to provide for his or her daily living needs, and whether the Protected Person is able to effectively manage his or her finances.
The liberties of the Protected Person are of primary concern for all those involved, and will not be impeded beyond what is necessary. We understand this is a difficult process for the entire family and strive to conclude the initial filing as expeditiously and sensitively as possible. We remain a support to the guardian and/or conservator to help facilitate the Protected Person’s care and management.
If you believe a family member or loved one no longer is able to effectively provide for their own health or manage their finances, please contact our office to discuss your options in ensuring the safety of the individuals’ physical care and finances.
Short of going through a protective proceeding, there may be legal documents and certain steps you may take to smooth out the process of managing your loved one's care. For example, if your loved one has a trust, having them step down as trustee and promoting a successor trustee is one of the smoothest and easiest ways to take over management of their assets and financial well being.
Another alternative is using a property power of attorney to manage their assets and a health care power of attorney to manage their care. If your loved one created these documents prior to becoming incapacitated, we can advise you on how best to use these documents and help you communicate with any bank or care manager that is refusing to honor the power of attorney.
If you would like to learn more about these options as well other ways that you may be able to care for your loved one without going through a formal proceeding, please contact us at (503) 641-6262 to set up an appointment with our Elder Law attorney and she will help your family navigate this difficult period.
If your loved one still has capacity, but you are concerned that they may become incapacitated, please visit our Incapacity Planning page for tools that you can use to protect your loved one and your family should they become incapacitated. In many instances, proper incapacity planning can alleviate the need for a formal protective proceeding.