The Pros & Cons of Guardianship or Conservatorship: How to Know If It's Right for You

Determining the pros and cons of a guardianship is difficult, but the main drawback to utilizing a guardianship or conservatorship rather than a power of attorney is the expense. It costs money to hire a licensed attorney, have the attorney prepare conservatorship or guardianship papers, file them in court and attend court hearings; as well as follow up on the appointment of the conservator and the formal reporting that the court requires from the conservator.

The attorney goes to court more than once. There is an ongoing requirement to report to the court, usually annually or more often, to account for expenditures. The cost for lawyers, other witnesses, and preparation of the guardianship case will run thousands of dollars when private attorneys are used. The money comes from the elder's assets. All of the steps to the decision by the court are costly and require legal representatives on both sides.

Things said in open court about an elder in front of the elder can be very upsetting and embarrassing to him or her. The procedure should be avoided when possible. However, it may be the only protection available in some cases. It can save an elder from financial ruin, injury, homelessness, and many kinds of self-neglect.

What Happens If No Family Member is Willing or Able To Be The Guardian?

Family members often serve as guardians or conservators and some do not charge the elder for doing the work. If there is no family member able or willing to be the guardian, someone outside the family is hired to serve. This kind of guardian is paid by the hour, from the assets of the elder.

A benefit to a conservatorship or guardianship is that the family of the elder, or the elder without family, has some security in knowing that the court is watching what happens to his or her funds and the potential for financial abuse is minimized. Family members can challenge a request for a guardian which has been presented in court.

The court can appoint a public guardian or other individual willing to serve as a guardian if no family or friend is available. Public guardians work for the county in which the guardianship or conservatorship is filed with the court. They are paid an hourly rate for everything they do, including keeping all financial records, visiting the elder to handle financial matters, and making annual appearances in court to report how money is being spent and the status of the elder.

Using a public guardian to handle the affairs of an elder is not foolproof, but it is far safer than having a questionable person serve as power of attorney with unlimited authority to spend money and sell property. There are instances of financial abuse even by public guardians, but safeguards are built into the system to minimize this risk.

This article has been adapted from The Boomer's Guide to Aging Parents, the Complete Guide by Carolyn Rosenblatt, R.N., Attorney. The nine-part series, also available in audio format, expertly delves into all the issues that an adult child can face while caring for an aging parent. The series includes knowledgeable legal and healthcare advice for handling everything from dangerous drivers, an elder's money to resolving family conflicts—and all with an approachable tone and real-world advice for how to start difficult conversations and find solutions that work for you and your family members.

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Posted in Legal Advice for Seniors, Legal How-to's, Powers of Attorney (Durable & Medical)