Let’s say you have a developmentally delayed child who is about to turn 18, which is the legal age of majority in most states. How can you continue to protect your child, who cannot get by in the world on her own, from a legal standpoint?
Or, consider an aging adult parent, whose cognitive abilities are diminished due to age, dementia or Alzheimer’s disease. The phenomenon of mental decline among our loved ones of advancing age is known as the Silver Tsunami, to signify its size, scope, and impacts across the United States. If Mom or Dad have not adequately prepared by making an estate plan including a durable power of attorney, they may need protection and assistance from a court-appointed representative.
Both of the above scenarios most likely will require a petition for guardianship, which is also called conservatorship in some jurisdictions. We start with the premise that once a person reaches age 18, they are assumed to have the capacity and legal authority to enter contracts, to marry, to live independently, and to make their own decisions autonomously. We all realize that is not the case for everyone, and many people require assistance from other loving adults to get by in this complex world. But one cannot legally represent the interests of another adult person unless a power of attorney is signed by the other adult, or unless a court grants the legal authority through the guardianship/conservatorship process.
In the case of the young person with developmental disability, the opportunity to sign a power of attorney will likely never come. To validly execute a power of attorney, a person must possess the capacity to give informed consent, meaning they must be able to understand and appreciate the ramifications of their decisions. In children with developmental disabilities, informed consent capabilities are not present, and so parents and loved ones resort to court-appointed authority.
However, if you are an adult of sound mind reading this article, you should have a durable power of attorney in place, as the lawyers at MDSLaw explain. A qualified estate planning attorney can assist you with preparing a valid and useful document that names another qualified adult of your choosing—along with a couple of backup nominees—to handle your financial decisions should you lose your ability to do so. Powers of attorney can be in place permanently or temporarily, depending on whether you regain your ability to manage your own affairs.
Assuming guardianship/conservatorship proceedings are unavoidable, let’s discuss the basic process:
- A petition is filed with the court, and a fee is paid to open the case.
- Notice to relatives of the person whose guardianship is being sought (the proposed “ward” or “Conservatee”) is sent according to law.
- The court assigns a lawyer who works for the court system, or an investigator contracted by the court, to interview the petitioner (and the proposed conservator, if not the same person) as well as the proposed Conservatee and possibly others.
- The court investigator writes a report for the judge, giving an opinion on two basic issues: first, is the guardianship/conservatorship necessary for the proposed ward, and second, is the proposed conservator well-suited and qualified for the job.
- The court conducts a background check on the proposed conservator in many jurisdictions.
- A medical doctor is often required to issue a report regarding the proposed conservatee’s mental abilities and deficits.
- A hearing is held, where the court issued an order granting or denying the original petition.
The process described above is a simplified synopsis of the proceedings one might expect, and you are always encouraged to seek qualified legal advice for your own situation.
With thanks to our friends at MDSLaw for their contribution to this article.