When Should a Conservatorship Be Dismissed or Never Initiated?

Any well-versed conservatorship attorney will admit there are times when this should be avoided. 

This legal procedure seeks to protect impaired or disabled adults who can no longer handle their affairs on their own.  But it is not a procedure that should be taken lightly.  Choice of conservator (otherwise known as guardian in some states), is important, and it is a work-heavy process for any individual that chooses to take the responsibility upon themselves.  There can be a fee arranged for the services, even amongst family members, but the fees involved do depend on the finances of the impaired individual.  Even professional conservatorship attorney, who are appointed by the court when no family member is available for an individual, find it a work-heavy process.  It takes time, organization, and record-keeping as it is a court appointment. 

There are times when conservatorship should not even be considered.

If an individual has a Durable Power of Attorney with a named individual to take over affairs in case of disability, or sudden illness, then unless a person needs to be committed to a long-term care facility, and cannot handle anything on their own, then a conservatorship is not necessary.  Advance Directives are generally included in a Durable Power of Attorney, and the medical decisions in some states, that may require nursing home placement can exist.  These types of situations, however, are usually spelled out in advance by the individual in question and the length of time spent in a facility or how, when or where the facility should exist can also be addressed.  On the other hand, conservatorships usually come into play when no POA is in place prior to disability or incompetence.  It leaves the administrator of the conservatorship with full control of either medical or financial decisions, or both.  A good attorney that specializes in this law will spell these differences out and suggest a Durable Power of Attorney first if an individual is even remotely capable of taking part in their own decisions. 

If a conservatorship is indeed needed, family members may not always be the best choice.

Above all else, these agreements need to be granted through the judicial process, and family members may have some hesitance about the workload involved, or conflicts of interest with the party whom they will be appointed to assist.  Attorneys in this field ensure that the civil rights of an impaired individual are retained as much as possible, and any interference or inability by a guardian to carry out the requirements is questioned before a conservator is named.  There can be witnesses and testimony and just like all other hearings, a final, equitable judgment.