In the American legal system adults usually have the right to make their own decisions in their life about the most important decisions as well as the most trivial decisions. There are exceptions to this rule, however, and they come under the heading of guardianships and conservatorships.
To illustrate how a conservatorship works, we will consider the hypothetical situation of 86 year old widower John Smith. John’s mind is generally sound, although his thinking process is not as sharp as it was when he was 36. He has no difficulties in undertaking the typical activities of life, such as cooking his meals, dressing properly, maintaining good hygiene, and following his doctors’ advice in taking medications. However, John has one weakness – financial. John frequently forgets to pay his bills, is often overdrawn in his checking account, and buys on impulse, wreaking havoc on his modest retirement budget.
John’s adult daughter Margaret is concerned about these financial problems. Most of all, she fears that her father could become the victim of financial fraud, which is commonly inflicted on the elderly. She, therefore, makes an appointment with an attorney to initiate a conservatorship. In this legal proceeding, the attorney files a petition in court stating that John is no longer capable of handling his financial affairs, and requests that the court appoint Margaret to be his conservator.
Because this process was abused decades ago, and family members used it to essentially steal funds from elderly family members, the law in Idaho (as in most states) has built-in safeguards to assure that the conservatorship process is carried out in a way that assists rather than exploits the elderly.
Upon the filing of the conservatorship petition, the judge will assign an attorney to represent John throughout the proceedings. The judge will also appoint a Visitor and Guardian ad Litem, individuals (often social workers) who will advocate for John’s best interests. The judge may also order a report from John’s physician regarding his mental capacity and ability to handle financial affairs.
Approximately three months after the conservatorship petition is filed, a hearing will be held, at which time the judge will consider all of the evidence and decide whether it is in John’s best interest to have Margaret (or some other person) act as his conservator. If Margaret is appointed Conservator, she will take over John’s checkbook, pay his bills out of this monthly pension, and otherwise have the right and duty to look out for his financial wellbeing. If a dishonest contractor convinces John that his house needs a new roof, and gets him to sign an expensive, unnecessary contract, that contract will be absolutely void and have no legal validity whatsoever.
Now let’s consider a guardianship. To do so, we will change the hypothetical facts concerning John Smith. Assume that John forgets to take his daily medication, that he does not look after his proper hygiene, that he leaves the stove on after cooking a meal, that he is often confused and lost while taking a walk in the same neighborhood where he has lived for 20 years. Assume further that, when Margaret comes to visit him, he often does not remember her name, and sometimes believes that his wife is still alive. Margaret has repeatedly asked John to live in an assisted living facility but he refuses.
We are now talking about a potentially dangerous situation. In order to provide for her father’s safety, Margaret will petition the court for a conservatorship and a guardianship. The judge will assign the same experts as in conservatorship and will give great weight to the medical report filed by John’s physician. If the judge appoints Margaret as John’s legal guardian, she now has the legal right to make all of John’s life decisions for him. She can decide where he lives, choose his doctors, monitor his diet, and essentially make all decisions for him that regular citizens make for themselves.
Because of the potentially demoralizing impact of guardianship, Idaho law makes the following mandate for judges to follow in crafting guardianship orders.
“Recognizing that every individual has unique needs and differing abilities, the public welfare should be promoted by establishing a guardianship that permits incapacitated persons to participate as fully as possible in all decisions affecting them; that assists such persons in meeting the essential requirements for their physical health and safety, in protecting their rights, in managing their financial resources, and in developing or regaining their abilities to the maximum extent possible; and that accomplishes these objectives through providing, in each case, the form of guardianship that least interferes with a legal capacity of a person to act in his own behalf.” [emphasis added]
If you are considering initiating a guardianship or conservatorship for your family, we provide free consultations so you can meet with one of our attorneys one-on-one and discuss your situation. Schedule a meeting today.