The media has been buzzing for months regarding the conservatorship of Brittney Spears and the legal ramifications that being under conservatorship or guardianship means to an individual. However, many estate and elder law attorneys fear that the media attention on this case might cast a stigma on an important legal tool that’s regularly used to help seniors and those with disabilities who can no longer manage their own affairs.
That’s essentially what a conservatorship or guardianship is for; it’s a court order allowing someone else the right to make financial and medical decisions for an individual who is found to be incapacitated or not otherwise of sound mind. Sometimes the person who serves as the guardian or conservator is a family member, and other times it’s a professional who is appointed by the court like a lawyer or a CPA.
If a guardianship or conservatorship is ultimately granted, the ward relinquishes control of their finances, medical care, and estate decision-making to the guardian or conservator. While this may mean that the person lives under various restrictions (like not being able to marry, vote, manage a bank account, drive, etc.) courts have tried to ensure that the ward of the conservatorship or guardianship can do as much as the judge or a physician deems they can.
It’s important to know that a guardianship or conservatorship is difficult to obtain and not a process that’s undertaken lightly. Here are a few examples of when a guardianship or conservatorship may be necessary:
- A senior with Alzheimer’s has lost the mental capacity to make decisions and manage his or her affairs and did not have a power of attorney or healthcare agent named in advance who can step in to help.
- An unmarried adult is in a car accident and has suffered a severe brain injury. A parent may need to ask the court for a guardianship or conservatorship for the legal right to communicate with doctors and make life or death decisions.
- A child with severe autism turns 18. Despite his or her disabilities, the child is now considered a legal adult in the eyes of the law, barring mom or dad’s involvement in their personal or financial affairs. Mom or dad will need to apply for a guardianship or conservatorship for the legal right to stay in control and make future care decisions for their child.
It’s also important to know that the court will keep a close eye on the guardianship or conservatorship. Hearings will regularly be held where details about the person’s continued incapacity will need to be presented to the court. The terms of the conservatorship or guardianship may ultimately change as the person’s condition improves for better or worse.
It should be acknowledged that, like anything, there is always the possibility for abuse. The case of Brittney Spears and the recent release of the Netflix movie “I Care A lot” are perfect examples of how this can happen. It’s why we try to encourage our clients to appoint someone they trust to serve as their financial power of attorney or healthcare agent before a crisis strikes so that a guardianship or conservatorship is never needed. It is the best way to avoid the possibility of someone else having complete control of your affairs if something happens.
Guardianships and Conservatorships are complicated and complex procedures and it’s natural to have a lot of questions if you are considering pursuing one for a disabled or incapacitated loved one. Please know that we are here as a resource for you, and we would be happy to talk through your options and help you evaluate the best path forward. To schedule an appointment, simply call our office at 941-909-4644 or 763-420-5087.
If you would like to learn more about how you can make it as easy and inexpensive as possible for your family if anything were to happen to you, click here for our free workshop.
