Often an aging parent will lose his or her ability to think clearly or make informed decisions about his or her life. This may occur because of dementia, mental illness, stroke, brain injury, or other severe health or disability conditions. Your parent may or may not have prepared for his or her elder years with a durable financial and medical power of attorney. If not, a conservatorship* may be necessary to protect your parent's best interests.

*This is called guardianship in some states.  To make the terminology even more confusing, some states refer to the appointment of a fiduciary for an adult as a conservatorship and appointment of a fiduciary for a minor is called guardianship.  Other states use the term guardianship to refer to the court-ordered protection of the protected person's physical well-being whereas the term conservatorship refers to the court-ordered protection of the protected person's finances, so an appointed fiduciary could be both a guardian and a conservator or possibly one but not the other.  In this article I am using the term conservatorship to refer to court-ordered protection of an adult's person and finances.

When There Is No Durable Power of Attorney

If your parent did not prepare for a loss of capacity and the need for legally recognized help, you will not be allowed to create these documents once they are already mentally impaired. With that opportunity lost, claiming the conservatorship of an elderly parent is a process that requires court approval. This ensures that the protections moving forward represent the best interest of the aging adult.

Medical Requirements for Conservatorship

When a person does not have an estate plan with powers of attorney, that individual may bristle at the mere mention of requiring a conservator.  Your first step is to obtain a doctor's letter or physician's certificate attesting to the individual's physical abilities and mental acuities.

Suppose you meet with resistance to having your parent willingly submit to an evaluation. In that case, you may still apply for conservatorship with the court. The court may then compel your parent to submit to a court-ordered independent medical examination.

When Is it Time to Step in and File to Be a Legal Conservator?

Over time, you may begin to recognize certain signs that having a conservator may be necessary for your older parent. This might include lapses in bill payments, lack of healthy foods at home, or your parent's insistence he or she can drive after a series of accidents. Driving is imperative to monitor because your parent endangers not just himself or herself but others as well. Additional signs it may be time for conservatorship include self-isolation, hearing or sight loss, and general forgetfulness, which can lead to injury around stoves, stairs, and other risks.

To file for conservatorship, you would apply with the clerk of the probate court (or family court or superior court or surrogate court in some states); this is a fairly standard procedure. However, by state, there are nuances and differences in law and process.

If possible, have your parent undergo a medical examination before applying; if not, the court can order one later. The court will begin legal conservatorship proceedings to determine whether you are fit to be the individual's conservator. This process generally involves assessing any existing conflict of interest, financial responsibility, and even a criminal background check.

Notifying Your Parent and Family of the Proceedings

With the petition on file and awaiting court approval, you must notify your parent, the proposed ward (sometimes called protected person), of the petition. This notification is a legal requirement and can sometimes create family conflict.

A parent's frantic contact with other family members upon receiving the petition is not uncommon. Notifying these family members or others with a right to know is not only a legal requirement but also best discussed before filing. Having family on board to protect your parent with conservatorship avoids expensive court battles.

Your Parent's Right to Representation

The court will appoint a guardian ad litem, who may not necessarily be a lawyer.  The guardian ad litem does not represent the your, your or the court.  The guardian ad litem talks to your, your parent, your parent's doctors, family members, friends, neighbors, social workers, pastors, and others. Afterward, the guardian ad litem files with the court a written recommendation regarding what he or she thinks is in the best interest of of your parent.

If your parent expresses disagreement with the petition, the court will appoint an attorney ad litem to represent your parent. This person will legally advocate on your parent's behalf. 

Typically, court hearings occur between 15 and 30 days from the respondent (your parent) being provided the petition. It may take longer if the court requests a multidisciplinary evaluation. In this instance, the clerk of the court may appoint an interim guardian whose powers include addressing the respondent's immediate needs.

A Multidisciplinary Evaluation (MDE)

A thorough evaluation may include medical, psychological, daily life skills, education, social work, and vocational rehabilitation needs of your parent, the respondent. With an aging parent, the focus tends to remain on medical, psychological, and daily life skill assessments.

After a full assessment of your parent's unique situation and your application to become a conservator, the court will decide based on the best interests of your parent. Your parent may pursue a process to appeal the decision. Your parent generally must file this in writing within 10 days of the court's decision. The appeal will prompt a new court hearing.

Conservatorship Laws Vary By State

When applying for conservatorship, it is crucial to understand the state laws where you live. Different states use different terms.

Some states require a “guardian” to control your parent's home environment, health care, and day-to-day needs. In other states, a “conservator” makes financial decisions, such as paying bills and budgeting. Still others will use either of these terms to mean the same thing.

The process can take substantial time and money, particularly if family members disagree. Many states give preference to the ward's spouse, adult children, and other family members, as they know the aging parent and his or her needs the best.

The court may also appoint a professional conservator. All conservators appointed by the court are entitled to reasonable compensation, although family members or friends typically will not charge for the service. Compensation for conservators must have court approval.

If the court determines you will serve as your parent's legal conservator, it will state this in a written court order. You will remain your parent's conservator until:

• your parent dies,
• the court finds your parent has regained capacity,
• you die, or
• the court finds it is in the ward's best interest to remove you as the guardian or conservator.

Your parent may need your help because of advanced age, a disability, or an illness. However, he or she may have not appointed an agent for health care or finances. Becoming your parent's conservator may be the best option. This will give you the authority to make decisions about medical care, finances, or other needs on your parent's behalf.

Contact your elder law attorney to establish conservatorship for your aging parent. Your attorney can guide you through applying to become a guardian or conservator. Your attorney and/or a professional care manager also can help manage your expectations regarding the best care for your parent.