Can I Be Forced into a Conservatorship?
Conservatorship and guardianship have held a prominent position in public and private conversations this year. People can be left wondering, “Could this happen to me? Could I be forced into a conservatorship? Could this happen to someone I love?”
There are situations when conservatorship/guardianship is necessary to protect an individual, there are documented cases of the system being abused. Forced guardianship/conservatorship is rare but can happen to anyone.
Recent Headlines about Conservatorship/Guardianship
The 2021 Netflix movie “I Care a Lot,” features a professional guardian who defrauds vulnerable senior citizens and their families. While the movie veers into thriller territory, the underlying premise is rooted in reality. Court-appointed guardians have tremendous powers such as deciding the medical care they receive, where the person lives, how much access family members have, and how to spend their savings.
The #freebritney movement gathered more steam this year. Eventually, Britney Spears fought for and received the end of her 13-year conservatorship. While she is far from elderly, her behavior led to her family convincing the courts she needed to be under a conservatorship. It’s been argued that the conservatorship continued long after it was necessary. Her father was appointed by the court in 2008 to be the conservator of her person and her estate, giving him control over nearly every aspect of her life.
Here in Pennsylvania, former court-appointed guardians were charged with embezzling more than $1 million from 108 victims. The prosecution alleges they used a shell company and a church to launder the stolen money. They face state and federal charges.
Farther south in Florida, a woman who at one time had 450 guardianships was arrested in 2020 on abuse and neglect charges.
What Is Conservatorship/Guardianship?
The terms generally mean the same thing: a tool that is intended to help and protect an individual's financial and medical well-being when they become unable to make those decisions for themselves. Laws vary from state to state. In Pennsylvania, the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act outlines how the process works in the Keystone State. The act is part of Title 20 of the Pennsylvania Consolidated Statutes: Decedents, Estates, and Fiduciaries.
The term guardianship is used most in cases of minors. A guardian cares for a child when their parents become incapacitated and are unable to do so. Guardianship of incapacitated adults allows the guardian to make financial decisions on their behalf. The term conservator is generally used only in reference to adults. A conservator can make financial, medical, and other well-being decisions for the incapacitated adult. A guardian and conservator are duty-bound to act in the best interest of the person they have been appointed to protect.
The statute defines an incapacitated person as follows:
“ ‘Incapacitated person’ means an adult whose ability to receive and evaluate information effectively and communicate decisions in any way is impaired to such a significant extent that he is partially or totally unable to manage his financial resources or to meet essential requirements for his physical health and safety.
The court must be petitioned for a guardian/conservator to be appointed. The person wishing to be appointed is the “petitioner.” They must serve a copy of their petition to the individual to which they are trying to have a guardian/conservator appointed. That person is called the “respondent.”
Evidentiary Threshold for Conservatorship/Guardianship
The court will schedule a hearing where the petitioner must prove the necessity for guardianship/conservatorship. Testimony from medical professionals and others trained to judge someone’s incapacities are critical aspects of the hearing.
The evidence presented must meet the high threshold of clear and convincing. This means that the evidence is substantially more likely to be true than untrue. This standard of proof is higher than the preponderance of the evidence but less than beyond a reasonable doubt. If the petitioner prevails, their attorney fees, court fees, fees paid to the experts, and other related costs are paid by the assets of the incapacitated person.
A court-appointed guardian can be given many powers on behalf of the incapacitated person:
- Provide general care, maintenance, and custody
- Designate where the incapacitated person will live
- Provide appropriate education, medical, and psychological services
- Sell real estate and other assets
Conservators are paid for their services from the assets of the person in their care.
How to Avoid Conservatorship/Guardianship
The laws intended to protect senior citizens are sometimes used to exploit them. Taking steps to circumvent conservatorship/guardianship in your future can provide a sense of comfort today. Plus, it is difficult to think about a time when we can no longer take care of ourselves, but there is always that possibility.
Estate planning tools can help protect you against unwanted conservatorship/guardianship:
- Living Wills: This is a written statement detailing your desires regarding medical treatment should you no longer be able to provide informed consent.
- Powers of Attorney: A medical power of attorney allows you to choose, in advance, a person you trust to make medical decisions for you. A financial power of attorney does the same but concerning financial matters. The same person or different people can fill these roles.
- Living Trusts: You can put your assets into a living trust and name the trusted person who will manage the trust if you become incapacitated.
You can also name in your will the guardians/conservators for minor children.
At Scaringi Law, our broad estate planning and elder law knowledge can help you set up a legal structure to help you avoid a forced conservatorship. We also can compassionately work with those who honestly need a guardian or conservator for their loved one.
Schedule a free consultation with one of our lawyers. Call us at (717) 775-7195 or use our online form to get started.