As your parents age, you may realize that their physical and mental health is starting to decline. If you start seeing signs of physical or cognitive decline, you may want to encourage them to consult an elder law attorney to begin the process of establishing their estate plan.
A competent adult can designate an agent in a Power of Attorney Document. This is done in writing, in the presence of a Notary Public, and in the presence of two witnesses. If this is not possible, perhaps because the cognitive decline is too advanced, consider a conservatorship as an option.
First, it is important to understand the difference between a conservatorship and a guardianship. A court appoints a guardian to care for a minor child or incapacitated adult.
A conservator is a person or corporation appointed by a court to manage the property of a minor child or adult legally determined to be incapacitated.
When is someone incapacitated?
The state of Missouri classifies someone as incapacitated if they are unable to receive and understand information or communicate decisions about their physical and mental condition to an extent they are at risk and cannot meet their basic needs.
Although it is not legally required, guardianships and conservatorships are often set up at the same time, and the same person is appointed as guardian and conservator. In some circumstances, the incapacitated adult may suggest a conservator if they can communicate their choice to a court. When there is no suitable person to serve as a conservator, the court appoints someone. In that order, they will consider the person’s spouse, parents, adult children, adult siblings, or other close adult relatives. If none are available, then non-family members are considered. A public administrator may ultimately be appointed if no one else is available.
Conservatorships can be limited or full.
A limited conservatorship only allows the conservator the authority to make specific decisions about the person’s estate. A full conservatorship allows the conservator the authority to make all financial decisions. Examples of decisions include deciding what bills to pay using the person’s finances or assets or deciding whether to sell their property to help pay expenses. Sometimes, a conservator is given the power to enter contracts in the person’s name, such as rental agreements.
Despite the power a conservator can potentially hold, a court continues to oversee the conservatorship to ensure the conservator is performing their duties properly and protecting the incapacitated person from abuse or neglect.
Acting sooner rather than later
It is best to initiate the conservatorship process when you first see the signs that it may be necessary and after all options are exhausted. This prevents you from having to make a difficult decision after an event or diagnosis that makes clear your loved one can no longer care for themselves.
Realizing that someone you love can no longer care for themselves is hard on both of you. However, if you wait too long to pursue a legal option such as a conservatorship, the consequences could be devastating, and the process could be more complex in the long run.