Should the US Do Away with Conservatorships?

Estate planning lawyerAre you among the many Americans who have been shocked to learn that your right to handle your own money or your right to control your own health decisions could be taken away by a judge? Many Americans don’t come across conservatorship or guardianship issues regularly, so it can be a rude awakening to realize these even exist. 

So what is a conservatorship or guardianship?

All states in the US have some form of conservatorship or guardianship. In general, these are legal interventions where someone’s right to make all their own health or financial decisions is judicially removed and placed with another person. 

Some states have adopted uniform rules and laws about how and when this is done, but many states have their own unique rules about it. In Florida, for instance, it’s easier to get out of a guardianship than it is to get into one. You need a higher level of proof and more people agreeing to impose one on someone than you need in order to get someone out of one. However, in Kansas, it’s arguably opposite, with the boundary to file being lower than the boundary to terminate one. In Colorado, which is one of the uniform states, there are similar restrictions for getting both in and out. 

In every case, there are specific things you need to prove, and you have to prove it to a specific extent, in order to get a court to impose a conservatorship or guardianship on someone. Generally, it means you have to prove that the person cannot safely handle their own health or financial decisions. In most states, you’ll have to have a physician, a professional psychological evaluator, and/or a court-appointed interviewer (called a “Visitor”) make recommendations that a conservatorship or guardianship is necessary. Necessary is a key word. These are not imposed just for fun. The person petitioning for one has to prove that it’s necessary and that no less restrictive options are available.

When is a conservatorship or guardianship needed?

Imagine your elderly parent being diagnosed with dementia. You visit them and realize they have forgotten to take their medication for five days, they haven’t changed their clothes, they’ve soiled their bed, and they have no food in their cupboards. You ask them to consider bringing in outside help or going to an assisted living facility and they adamantly refuse. What do you do? You cannot force them into a facility when they are in control of their own health decisions. 

Imagine another scenario where you live far away from your beloved, aging mother who has pretty severe memory problems. You come to learn that she has recently gained a “boyfriend” who is thirty years younger than her, lives over an hour away from her, and is already married. Now add to this that the new boyfriend has taken it upon himself to “clean” out your mother’s house for her, including her bedroom. She is delighted. He is too, because he found $10,000 in her sock drawer.  Her “boyfriend” purchases a $10,000 vacation package for himself and his family. Your other is not invited. You plead with your mother to break up with this guy, but she refuses. What do you do?

Last scenario: Your father has always had a charitable heart. He gets diagnosed with Alzheimer’s but is still living on his own. You come to visit him only to find that he has welcomed five people to live with him and each one has a criminal history longer than this article. Now one of these folks living with him has convinced him to rewrite his Will placing—you guessed it—the freeloader as the sole heir. If your father refuses to listen to reason, what can you do?

The answer, and really the only answer, in each scenario, is a conservatorship/guardianship.

Can’t a Power of Attorney form help?

Not necessarily. A power of attorney can indeed give a third-party the ability to help someone with their health and/or financial decisions. However, in almost every case, if the person decides to revoke the power of attorney, or if they are present when a decision is made and they disagree, their decision trumps. So in each of the above situations, unless you can convince the person in need to change their mind about the dangerous decisions they’re making, their decision trumps all others even if they have a power of attorney.

But how is it legal to take someone’s decisions away?

US law actually does this all the time. When your individual rights conflict with someone else’s or when they endanger someone (including yourself), the law steps in. The most basic version of this is taxes. From the minute you earn money, you don’t get full say over what happens to it. We all know a chunk of it goes to taxes, and those are used on public goods such as streets, firefighters, and the like. 

Think also about parenting. If you marry, have children, then divorce, your parenting time is now going to be decided via the court system. If you want to have your kids with you on Thursday, but your ex-spouse disagrees, and the court gives Thursdays to your ex, then it’s tough luck for you. 

If you make a suicidal statement, your loved ones—with the law backing them—can send you to a hospital for a few days even against your will.

Now, as with all laws, we have to strike a balance. We want to protect our loved ones who are in true danger of harming their health or finances, but we don’t want these laws to allow malicious persons to get hold of someone who should have the right to make their own decisions. 

There’s always a way for laws to be misused. The trick is finding the best compromise between protection and restriction.

So what can you do to help make the conservatorship and guardianship laws better?

Consider making your voice heard with the right people. 

Stating your opinion on Twitter with #freebrittney on it will add a drop in a bucket of mostly-uninformed noise. It’s still a drop, and that’s not nothing, but what’s more impactful is talking to those who are making recommendations to lawmakers. 

Consider, for instance, the National Guardianship Network (NGN). The NGN meets regularly to discuss issues and create task forces that intend to help make the conservatorship and guardianship laws better throughout the country. Because of their requirements for who can participate in decision making, their recommendations are taken seriously by lawmakers. 

The NGN is currently looking at promoting a Bill of Rights for those that have a conservator or guardian appointed. They are also looking at promoting courts to do away with “plenary” actions (where the appointed person gets control over all the person’s rights in one fell swoop). They are promoting having to prove more specifically what exactly it is the person needs. 

Another area of potential estate legal reform is creating more alternatives that are more protective than powers of attorney but less restrictive than a full conservatorship/guardianship, as the lawyers at Gant Law explain. 

Your best bet for making a real impact is to get educated, consider all sides and circumstances, and then talk to your local lawmakers and the associations that provide recommendations to them. 

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