Monday, October 24, 2011

Elderlaw - When Parent Loses Capacity

Long-term planning experts always suggest that you bring legal and financial matters up to your parents or loved ones before any crisis or major illness occurs. Unfortunately, not everything is set in stone for people. Or, they may go about planning for long-term care, but for whatever reason, whether they get busy with life or Mom and Dad don't want to cooperate, they never get around to it. Then, as one would expect, the inevitable happens. Mom falls and needs 24-hour care or Dad develops dementia from Parkinson's. All of a sudden, neither of them can make decisions on their own. You are suddenly faced with paying their mortgage, their nursing care, and other bills, only you do not have any rights. So, what do you do? Your choice is a conservatorship.
What is a Conservatorship?
A conservator is appointed through a court supervised hearing to manage financial or personal affairs for someone who is unable to do so on their own. There are 2 types of conservators: The Conservator of the Estate and the Conservator of the Person.
* The Conservator of the Estate deals with the financial aspects.
* The Conservator of the Person deals with decisions on behalf of the conservatee.
A conservator may or may not be the same person and can be different people. They can be selected by a person before they lose mental capacity and hopefully the person selected is someone well-trusted. The conservatee also has the right to fight a conservatorship in court if they feel they have the capacity to make financial or medical decisions.
An attorney will be appointed by the court, should the conservatee become afflicted with a brain-impairment such as dementia.
Conservatorship without an Attorney
You can obtain information and forms to file a conservatorship through the probate clerk. A court hearing will be scheduled to determine if a conservatorship is granted. The local senior advocacy group in your town or city should be able to help you or your loved one file the appropriate forms.
1. The person affected should be informed if they need a conservatorship.
2. If the person does not understand what a conservatorship is and they have been diagnosed by a physician, the conservatorship should be put into place.
3. Once an investigation is conducted (prior to the appointment) and the proper papers have been filed, the court investigator will determine whether the person affected is suitable for a conservatorship.
The investigator is required to fill out a form stating why a conservatorship is needed and the investigation has to take place in no less than five days prior to the hearing. If the investigator recommends a conservatorship, the judge will probably follow the recommendation.If the individual is diagnosed with dementia, an attorney will represent the conservatee. To ensure this is a proper conservator for the proposed conservatee, all documents filed are reviewed by a probate examiner who posts on the internet, any corrections needed to be made a the probate court website. Any corrections must be filed 3 days prior to the hearing.
Follow-up investigations will continue after the first year has passed, and then every two years thereafter. Once the conservatorship papers have been completed and a capacity form as been signed by a physician, the conservatorship can take up to 2-3 months from filing. If limited paper work has been filled out, or there are many corrections to be made, a conservatorship can take up to 6 months.
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