Guardians and conservators are appointed to make health care and financial decisions for people who cannot make or communicate these decisions on their own. A “guardian” is authorized to make health care decisions on behalf of the individual, while a conservator has authority to make financial decisions.
If an incapacitated adult does not have a health care proxy and durable power of attorney in place, the local probate court will appoint a guardian and a conservator. These could be people you never would have wanted to make important decisions for you (or your loved one) in the event of incapacity. In addition, the guardianship and conservatorship processes can take a very long time and cost a great deal of money. Family disputes often arise over who should be named guardian of the person and/or conservator, leading to costly lawsuits and hard feelings that can last a lifetime.
It should be noted that the authority of the guardian and the conservator are limited. This means that certain crucial decisions must receive additional court approval even after the guardian and the conservator have been named. For example, what if the individual needs nursing home care? The move to a nursing home will have to be approved by the court. Imagine how stressful such a situation would be, especially if your loved one needs nursing home care quickly!
Furthermore, if proper planning was not done in advance, MassHealth will consider all of the individual’s assets countable. To protect those assets for the benefit of the well spouse or a disabled child, the conservator must receive special authority from the court. Finally, the guardian and the conservator must make regular written reports to the court regarding the individual’s status for the duration of the guardianship and conservatorship. This is time-consuming, expensive, and stressful for everyone involved.
At the Law Office of Alexis B. Levitt, we can use a number of tools and strategies to avoid court-mandated guardianship and conservatorship proceedings and protect estate assets. These include powers of attorney, health care proxies, and trusts. However, if you are currently faced with a guardianship or conservatorship proceeding, we can provide experienced counsel to protect your interests and/or those of your loved one.
We invite you to contact us to schedule a planning session to discuss your specific needs and goals.