Your Connection to Elder Law and Care Answers

Get free professional answers to your Guardians - Conservatorship questions

Recent Guardians - Conservatorship Advice

    I Am Under Plenary Guardianship. What can legally happen if I runaway from my placement
    User image
    Vicki K. , Nurse and Care Manager answers:
    This is a legal issue. An attorney is the best resource for this matter.

       Share: post tweet

    Can I turn over guardianship of a child to his maternal grand mother
    User image
    Joseph M. , Elder Law Attorney answers:
    Guardianships are the result of the Court appointing the Guardian. If the appointed Guardian wishes to resign, they have to petition the Court to do this. You can't just turn the guardianship over to whoever you want. The maternal Grand Mother would have to petition to be appointed. But, with a recommendation from you, it might make the Court more willing to appoint her.
    User image
    Linda S. , Nurse and Care Manager answers:
    Yes if maternal accepts
    User image
    Mina S. , Elder Law Attorney answers:
    Please call our office for a free consultation on the telephone. I have many questions to ask before we can answer your question. That depends on many factors.

       Share: post tweet

    I was named my husband's guardian. He is now in a nursing home and the court is telling me I don't have access to his money. Is that right?
    User image
    Phoebe H. , Elder Law Attorney answers:
    In Virginia the court can appoint a guardian of an incapacitated person and a conservator roe their money. If a court appointed you as your husband's conservator the terms in the order and Virginia law will determine how his money can be used. You are a fiduciary and are held to a very strict standard. If the court order is not adequate, it is possible to go back to court to obtain more specific authority or the exclude certain monies from the order. You should take the order that was entered to an elder law attorney and get advice based on your specific situation.
    User image
    Carolyn W. , Elder Law Attorney answers:
    In Virginia, your status as a "guardian" gives you no access to money unless your "guardian" appointment was prior to about 1996. You may have other authority to access to your husband's money, but it sounds like you need an elder law attorney's advice.

       Share: post tweet

    My husband received guardianship over her mother a year ago after her doctor told us she was showing signs of dementia and Alzheimer. His brother was suppose to be the guardian originally, but at the last minute his mom got mad at him and wanted my husband to take the task. He agreed, not really understanding what that meant and we still don't. We assisted in getting her into a senior condo that provided meals and drug administering. She signed her own lease and was still competent to do so. She was not considered unable according to her doctor. His mother was later evicted from the condo for not following the rules and smoking in the room after being warned several times. She is a very mean and nasty person to anyone that doesn't agree with her and would not agree to stay at the next facility we found for her that was close to what she could afford. She has no assets of any kind. The only income she has is Social Security. His brother has had control over her monthly check from the beginning of all of this and has been the one paying her bills. The situation has been impossible for my husband to be involved with his mother or brother. She continues to awful and not follow rules and has been kicked out of the last place as I understand. It has been over a year now and my husband just discovered he was suppose to file reports and never has. We don't know what to do now. Since he has never filed reports as he was suppose to now what? Does he have to formally relinquish his guardianship or does it just stop since he did not file reports? My husband can no longer handle the stress of his mother or his brother. What do we do now???
    User image
    Sanford M. , Elder Law Attorney answers:
    As guardian, your husband should file the required report. It will inform the court about her residential and care status. At the same time he can petition the court to either modify or terminate the guardianship. If the court still finds that she needs a guardian the judge will decide whether to appoint the other son or someone else, such as a public administrator, to serve. Feel free to contact me directly if you need any assistance with this process. Thank you.
    User image
    Laurel F. , Nurse and Care Manager answers:
    Your husband must contact the probate court that he wishes to resign and the brother would take over. If she indeed had a guardoanship she never should have been allowed to sign the lease and the brother should not have handled the money that is the guardians job unless a conservator is appointed. if brother wont take over the court will appoint a public administrator attorney to be her gusrdoan
    User image
    Jane A B. , Elder Law Attorney answers:
    A guardianship does not automatically end unless the ward passes away. The reports are fairly easy to complete. There is a process to follow to request the court allow the guardian to step down. I cannot give specific legal advice without meeting with the client, due to attorney licensing rules, but we offer a reduced rate initial consultation that would get you pointed in the right direction.
    User image
    Alan M. , Geriatric Care Manager answers:
    It is not to late to file the report with the court. I would call the clerk of the probate court and ask to receive the necessary forms.

       Share: post tweet

    MY AUNT HAS GUARDIAN OR CONSERVITORSHIP SINCE WE GAVE IT UP. CAN WE ASK FOR TIME? CAN WE EVEN GET GUARDIAN OR CONSERVITORSHIP BACK? DO WE NEED A ATTORNEY? WE WOULD NEED AT LEAST 4 MONTHS TO PREPARE? CAN SHE DO THAT
    User image
    Alan M. , Geriatric Care Manager answers:
    Yes, guardianship and conservator status can be reassigned. An attorney helps but is not absolutely necessary

       Share: post tweet

    I was granted guardianship of my mom in May of 2014 because she had been hospitalized due to severe medical complications from surgery. She has been home, has recovered, is taking care of herself now for over a year. Me and my family are moving next month and I will not be able to be her guardian any longer. However, she doesn't even need it anymore. How do I reverse, or resign as guardian in Minnesota?
    User image
    Susan P. , Elder Law Attorney answers:
    The court has to discharge you. If your mom doesn't need a guardian, you would petition for her to be restored to capacity and you to be discharged. Otherwise you would petition for some other person to serve as guardian and for you to be discharged.

       Share: post tweet

    Can a conservator ask the state to be compensated for their services with money? Who pays the conservator for thier services?
    User image
    Ruth P. , Elder Law Attorney answers:
    The state doesn't pay a conservator, unless the conservator is the public guardian. The conservator is compensated from the conservatee's estate, with court approval, or by the conservatee's family, or from the conservatee's trust.

       Share: post tweet

    My 94 year old father lost most of his savings becoming a sucker for Jamaican Lottery scammers. We've been trying to stop him by advising Federal and State agencies but nobody was willing to pursue it. Now, three years later, because he's applying for Medicaid, Social Services saw many discrepancies, bad checks, taking money in from Jamaica, sending small amounts all over the country and unwittingly setting himself up for fraud. He's closing on the sale of his home next week. We are afraid he will squander the money. Should we apply for conservatorship to keep him safe from himself and to keep my 100 yr old mother in assisted living? If we get guardianship or conservatorship, will we, his children, be responsible for his debt if his assets are frozen from sale of his house?
    User image
    Sonya M. , Elder Law Attorney answers:
    No, not from yopur personal funds, but rather from his, if there are any. Children are not responsible for parent's debts and becoming guardian does not change that fact.
    User image
    Debra D. , Geriatric Care Manager answers:
    You shoukd speak with your local DAs office. Most have an elder abuse department who can advise you
    User image
    Staci C. , Elder Law Attorney answers:
    We deal with elder problems if the elder lives in New Jersey. If this is the case, let us know. You can also call.

       Share: post tweet

    I need to get guardianship over my parents. My mom has no problem with this. It is my dad that presents a problem. I asked him to give me power of attorney (POA), but he refused. He is 78 years old and won't let my mom eat any of the food he has paid for. He also doesn't answer any questions that we ask him. When we do ask him a questions, he clams up like a 2 year old. Won't guardianship help? What does the process look like?
    User image
    Jane N. , Elder Law Attorney answers:
    In order to pursue guardianship over either parent you would need a report from a physician licensed to practice medicine in Indiana. This report must state that both parents are incapacitated, the nature of their incapacity and the fact that they can no longer manage their personal and/or financial affairs. You must have an attorney represent you in a guardianship proceeding but the attorney's fees are usually paid out of your parent's money.

       Share: post tweet

    I am the carefaker of a 94 yr old woman who is in sound mind. Her daughter is trying to make sure she dies quietly. I would like to take custody of her to be sure she has the last years of her life spent at home with me taking care of her. What can I do to gain custody of an elderly person?
    User image
    Cheryl A A. , Nurse and Care Manager answers:
    Define what you mean about the daughter wanting her to die "quietly". I'm sure we all want a quiet, peaceful death. I am not an attorney, but you can't "take custody" of someone who is reportedly in their right mind. You can be appointed a medical power of attorney, but this is in direct conflict to being the caregiver, so you should really resign if that is what she wants to do. That does not give you any financial authority, only the ability to make healthcare decisions. This can be a very slippery slope.

       Share: post tweet

    My mother, without my knowledge, gave POA, HIPAA, and transmitted a holographic will to her bank teller! This Chase bank teller has known my mother and done my mother's banking for years. She is in some trouble with the bank for her involvement in my mother's affairs.

    I only became aware of the nature of her involvement at the point that my Mother was about to be appointed a guardian and the teller notified me. The bank employee claimed that she knew my mom wouldn't want a guardian.

    I am not sure that I want to be guardian over my mother but I don't want this bank teller to get guardianship either. I feel she has been dishonest by taking a holographic will from my mom since she was her banker at Chase and she only decided to get in contact with me or my brother when she was being investigated.

    Thank u for your help.
    User image
    Jordan R. , answers:
    I would add to Angela's sensitive answer, that you can search for elderlaw attorneys, here at MyAgingFolks.com on our Search Professionals page.
    User image
    Richard B. , Elder Law Attorney answers:
    Is your Mom able to make her own decisions? Has she been diagnosed with dementia? If so, when? If not, can she and will she sign new documents? Who is wanting guardianship? Why? Thanks
    User image
    Angela T. , Nurse and Care Manager answers:
    I would recommend you consult an elder law attorney near where your mother lives. You can go to this website: www.naela.org and using your mother's zipcode find an attorney in her county who can help you. This is not a totally unusual situation. The bank tellar may have negative motives or may just have been going along with your mother thinking she was being helpful. The attorney can help you get to the bottom of it and also decide if you want to be your mother's guardian or not.
    User image
    Cheryl A A. , Nurse and Care Manager answers:
    I am not sure what the question is, and this is indeed a very questionable issue from an ethical standpoint. I would suggest that you file a report with Adult Protective Services - they will not likely do anything, but at least you will have a tracking record of this issue/event. It also appears that your mother may be vulnerable to outside influence, again, a good reason to file the complaint, but also a reason to investigate why/what is her mental status. If you do not want to be the guardian, you can hire one that is registered with the state. On the other hand, who has determined that your mother even needs a guardian. That is usually an extensive, costly legal process. Overall, this is a very complex problem, and I would recommend that you consult an attorney for several issues, including the possibility of a guardianship. This can often be avoided with the right tools in place. As a geriatric care manager, my role is to oversee the care needs, recommend resources and sometimes, be the eyes/ears for the family members. Feel free to contact me for further assistance.
    User image
    Carole L. , Geriatric Care Manager answers:
    First you are going to have to figure out if you want to commit to taking care of your mother or not. Either you are in all the way, or you are out. The way your question was put tells me that you are undecided. You've got to know yourself on this issue before you do anything. If you decide that you are in, your best choice is hiring an Eldercare attorney to represent your interest in caring for your mother in front of the court. If you are out, than you can't care what happens afterward, no matter what it is. either fight to care for your mother or let her go. Whining about it while doing nothing solves nothing.
    User image
    Stephen L. , Elder Law Attorney answers:
    There are two types of guardianships in Texas.....the person and the estate. The Guardian of the person makes the health decisions for an individual and the Guardian of the estate makes all the financial decisions. A Guardianship trumps any Power of attorney.

       Share: post tweet

    I am in North Carolina. In 2005 I became Mom's guardian after having to declare her incompetent. My sister in Ohio wants to be the Guardian now? Can the guardianship status be transferred?

    You see, my sister is in Ohio and since Mom needs a Memory Care Facility, we want to do it there and my sister would have to be guardian. NC said she had to start process up there. She's finding out they want to start all over. Says I have to relinguish guardianship in NC & redo in Ohio. Having to have her reevaluated & declared incompetion again & the funds transferred to Ohio & her appointed guardian all sounds like alot of difficulty given that I am agreeable with her being the guardian.

    Does redoing the guardianship process sound right? We'd hate to go through all that again. Are there any short cuts to the guardianship process?
    User image
    Jonathan F. , Elder Law Attorney answers:
    Sorry, there are no shortcuts. The purpose of the procedures in Ohio and NC are to protect your Mother's rights. Believe it or not there are some children that would take advantage of their Mother; hence the need to evaluate you as a Guardian and your Mother's needs for one.
    User image
    Richard S. , Elder Law Attorney answers:
    Before giving any real advice I would want to know more of the particulars of your situation. But in answer to your question, it appears that there are three intertwined issues here of which merit consideration. First, simply resigning as guardian does not terminate the guardianship. It is possible that if you resign the clerk will appoint DSS as guardian. And it doesn't guarantee that OH would institute a guardianship or appoint your sister as guardian if they do. That sounds like a risky and expensive course of action. Second, it is probably true that an Ohio guardianship cannot be established while there is one in NC, but that is a question of Ohio law and I do not have an Ohio license. Third, and moving toward a possible solution, there is nothing to prevent you from bringing a petition to modify the NC guardianship by appointing your sister co-guardian. There is also no reason that you cannot move Mom to Ohio even with the NC guardianship so long as there is a reason to do so, and it sounds like there is. The guardianship estate funds would need to stay in a NC bank, but in this era of internet banking that is no big deal at all. You would also continue to file annual accounts in the NC court but, again, that is no big deal. We file documents for clients that are out-of-state all the time. I hope this helps and wish you the best.

       Share: post tweet

    I am appointed as conservator. Therge are some that what to demote me. What reasons are valid for stripping someone of your conservatorship? If I have all documents in order, what chances do i have as staying conservator?
    User image
    Joseph M. , Elder Law Attorney answers:
    Being removed as a Conservator is not an easy task. It would have to be proved that you have breached your fiduciary obligations; took funds for your own use; or fail to act in the best interest of the Conservatee. They have to go to Court to have you removed, which is expensive. Do you have legal counsel?

       Share: post tweet

    In a troubling situation close to me, I know of a guardian for a child who left the child alone when she went to another house. Do you know how the court will judge this abandonment of the child who is under her guardianship?
    User image
    Davida W. , answers:
    In my experience, dealing with caregiver in situation like "abandonment " it is a case by case investigation, depending on the child age, length of time child was left; the circumstances; the conditions, has this happen before, how often do this type of thing take place. was it the first time. The investigation can last for awhile, or just a very short visit; however if you suspect something like this it taking place, and the child could be in harm/danger , it should be reported. hope this information was helpful?

       Share: post tweet

    My brother & sister have taken everything my mother worked a lifetime for. I want them to be responsible for what they have taken. I'd also like to sell her house and provide for her with the proceeds. Can I file for conservatorship to accomplish these goals?
    User image
    Ronald A. , Elder Law Attorney answers:
    the answers provided by Marty Burbank and by Joseph D. are both excellent answers. I can't anything else that would improve upon those answers.
    User image
    Scott S. , Elder Law Attorney answers:
    Yes, as a daughter, you have standing to file a conservatorship and if appointed even pursue your siblings for misuse of your mother's funds. If we can be of assistance, please contact us.
    User image
    Joseph D. , Elder Law Attorney answers:
    There are two questions: 1. Can you use a conservatorship as a vehicle to sue your siblings for elder abuse either physical or financial. The answer is yes 2. Can you sell your parents house to support them through the conservatorship. The answer again is yes if you can proveit is in their best interest. BUT there are many reasons not to sell the house. There could be adverse capital gain tax effects which would not exist if the house was inherited. Also a residence is exempt from Medi-cal but the cash proceeds are not, so by selling the house you might lose out on some government programs.
    User image
    Marty B. , Elder Law Attorney answers:
    If your mother is incompetent then we can petition the court to establish a conservatorship for her. However, this is not an easy process, especially if your mom contests the conservatorship. Your brother and sister can also petition the court that they should be the conservators of your mom. If your mom does not consent to the conservatorship this is also a very humiliating experience for her. You will have ongoing duty to report to the court regarding how you manage your mother’s assets. For more information you can visit with the button off to the left.

       Share: post tweet

    My mother has Alzheimer's. Can I get a guardianship over my mom? My Mom remarried in New Jersey and her new husband wants to take her away to Ecuador. We believe that if she leaves the country with her new husband, we will not see her again. We want to take care of her in NJ where all her family lives. We believe the husband has been emotionally abusing our mother? Will a guardianship over our mother help?
    User image
    Michael W. , Elder Law Attorney answers:
    If you are able to prove your beliefs as well as the fact that it is in mom's best interests to have you as her Guardian, then it will work out for you. You have to understand that the spouse will be the first priority to be the Guardian, so you will have to overcome that preference. From your question I have to assume that your mother's husband will fight this in court, so you have to be ready for a battle in court. Do not try to do this yourself, you need to be represented by a qualified elder law attorney. And, don't wait because he may attempt to move her faster than you make your decision to proceed.

       Share: post tweet

    I have been asked to take on guardianship and conservatorship for an adult who is in the early stages of dementia. What are the legal and non-legal responsibilities of being a guardian for adult male who is not a relative? What consequences pertain to becoming a guardian or conservator?
    User image
    Joel G. , Geriatric Care Manager answers:
    It would be best to consult an attorney. There are definitely legal responsibilities that the court will define. However, there are moral and ethical considerations that have to be taken into account as well: what are the person's stated or implied wishes for medical care? Are there any Advanced Directives? What financial responsibility will you have? Is there compensation for your work? How is that recorded. Bottom line: enter this relationship with good counsel. There are many qualified eldercare attornys in the area.
    User image
    Alan M. , Geriatric Care Manager answers:
    Contact your local probate court. Most courts have pamphlets explaining the duties. You can call Monica Moons 248-489-8600 Probate attn. in Farmington, Michigan

       Share: post tweet

    In the state of California, how are the fees pertaining to a conservatorship determined? Is it 1.25 of the gross value of the estate or 1.25% of the net estate value?
    User image
    Samuel H. , Elder Law Attorney answers:
    California conservatorship fees are determined by the court, usually after services are rendered, based on time spent, service descriptions, and hourly rates approved by the court. The rates vary by county and according to whether the conservator is a professional fiduciary or a family member. The court has great discretion to establish fees.
    User image
    Linda G. , Elder Law Attorney answers:
    They are charged hourly. Depending in the county a private professional fiduciary gets about $75 to $150, depending on experience. A family member range is $10 to $40 (depending on the county, task, experience, difficulty and issues in the case.
    User image
    William B. , Elder Law Attorney answers:
    Careful here; most courts award fees based on the amount of hours worked and the results accomplished; you need to keep good track of the hours you put in.

       Share: post tweet

    My mother has a conservatorship in Ventura County and I wish to transfer my mother ( who is on a conservatorship) to San Diego County where I live (son). I am disabled and very difficult to go to Ventura County myself.
    User image
    Linda G. , Elder Law Attorney answers:
    If you are represented by an attorney, the attorney could file a petition to transfer the venue to San Diego from Ventura County. If you are not represented by an attorney, you may need to hire an attorney to file the proper petition in Ventura to get your case transferred to San Diego. If you were represented by an attorney, you would not need to appear in Court. I expect it may cost as much as $2,000 for the filing fees ($435) and attorneys fees (approx. $1,500) to handle the change of venue. There may be additional fees and expenses, but the above is a guesstimate.
    User image
    Linda G. , Elder Law Attorney answers:
    If you are represented by an attorney, the attorney could file a petition to transfer the venue to San Diego from Ventura County. If you are not represented by an attorney, you may need to hire an attorney to file the proper petition in Ventura to get your case transferred to San Diego. If you were represented by an attorney, you would not need to appear in Court. I expect it may cost as much as $2,000 for the filing fees ($435) and attorneys fees (approx. $1,500) to handle the change of venue. There may be additional fees and expenses, but the above is a guesstimate.

       Share: post tweet

    I have been appointed a Plenary guardian of my brother. In order to have my brother adjudged totally incapacitated, I needed to retain a Psychologist to testify. Can I use funds in my brother's account to pay this fee?
    User image
    Linda L. , Elder Law Attorney answers:
    I am not sure how you were appointed a plenary guardian without the court hearing at which a doctor already testified. When the decree is issued, it should provide instructions for the payment of your brother's bills. So the short answer is yes you can use your brother's money to pay this bill, but after the Decree is issued appointing you plenary guardian. If you mean it was a contested guardianship and more testimony is needed, the judge still will provide the guidance in his or her court order or decree. This is general information and not advice specific to your particular situation, so you may do well to hire an attorney in your area to assist. Best wishes to you.

       Share: post tweet

    My friend has been assigned a 'guardian'. How do I find out who the supervisor of this guardianship is? Is there a way I can find out the name of the guardian?
    User image
    Roland G. , Elder Law Attorney answers:
    Mass. guardinans are appointed by the probate court. Check witht the local county probate docket clerk for help.
    User image
    Joanne F. , Elder Law Attorney answers:
    When one has a guardian, the guardian has the power to make most of the decisions about the person's life - who will care for them, where they will live, etc. The person who gets the guardian is called a "person in need of protection" or the "ward." At the same time, the ward loses any legal right to make decisions for himself. He can't write checks, enter into contracts, obtain credit cards, etc. Because this results in depriving the ward of the right to run his own life, it's considered an enormously important step, and it can be done only by order of a judge. Someone - possibly a relative or a health worker, or a nursing home employee may have filed a petition to the court seeking that a guardian be appointed for your friend. This would have happened in the Probate and Family Court of the county in which the ward resides. Quincy is in Norfolk County. The Norfolk Count Probate and Family Court is on 35 Shawmut Rd. Canton, MA 02021. If your friend lived in a different county, you would have to check with the Probate and Family Court of that county. You can check the records at the courthouse to determine who the guardian is. When someone is appointed a guardian, he or she kind of steps into the role of a "mother." The judge is the supervisor of the guardian. The law requires the guardian to make at least annual reports to the court describing, first, whether the ward needs a guardian and also what is being done to meet the ward's needs.
    User image
    Patricia B. , Elder Law Attorney answers:
    contact the probate court - if friend lives in Quincy that would be the Norfolk County Probate Court.
    User image
    Gary Z. , Elder Law Attorney answers:
    You may want to go to the probate court in the county where your friend lives, and then use the court computer system to look up your friend's name to get the docket number assigned to the case. If you ask the clerk for the file you should be able to find out who the guardian is. Alternately, if the court is reluctant to let you see the file you might just ask who the guardian is. Regarding who supervises the guardian - that would be the court itself and the specific judge assigned to your friend's case.
    User image
    James A. , Elder Law Attorney answers:
    The appointed Guardian operates under the law and guidance of the Court. The Guardian sometimes is required to petition the Court for permission to make decisions that relate to the care and maintenance of the ward.

       Share: post tweet

    My deceased brother has no family. I am his only sister. What is the easiest way to become conservator of his estate? What does that process look like? How much will it cost me?
    User image
    J. Terrence M. , Elder Law Attorney answers:
    Conservators are appointed to manage the affairs of an incapacitated person, not decedent's estates. There are various ways to pass a decedent's property via the probate process, depending on the value of the estate. There is too little information to answer the question.
    User image
    Wendy D. , Nurse and Care Manager answers:
    If your brother is deceased & has an estate, then he needs an executor & not a conservator. How the estate should be handled & who does it depends on whether he has a will, & if there is a trust or will the estate need to be probated. I suggest the sister confer with an attorney who specializes in probate.

       Share: post tweet

    My brother is guardian for my mother. If he dies, who would become guardian? My brother is married. Would his wife automatically become the new guardian?
    User image
    Alan M. , Geriatric Care Manager answers:
    No guardians are appointed by the county probate court. A petition would be filed nominating another person as guardian
    User image
    Diane S. , Geriatric Care Manager answers:
    This is a question for an attorney. Please call.

       Share: post tweet

    Is it possible to be granted Guardianship or Conservatorship based on my elderly father's behavior? We have tried to stop him, but he has continued to send money to sweepstakes companies since last May. He refuses to believe they are not legitimate. We spoke with him directly, called the company, contacted the FBI, FTC, IRS, etc.. No one has been able to help us. What should I do?
    User image
    Celeste R. , Geriatric Care Manager answers:
    I am currently working with someone with the same issue. Do not allow your father to have an active or inactive checkbook available to him. Have all his mail sent to you. Lottery scams are very prevalent among the elderly. Change his phone number to an unlisted phone. You may want to have Protective Services or Dept of Homeland Security chat with him--sure scared my client!
    User image
    John T G. , Elder Law Attorney answers:
    The laws in Massachusetts regarding Guardianship/Conservatorship are sensitive to the rights of the proposed incapacitated individual and, as a result, encourage limited guardianships/conservatorships. The fact that your father spends money on poor investments is not conclusive proof of his inability to handle his own finances (although it may be helpful argument for it). If your father is unwilling to curtail his behavior, I would recommend a collaborative effort between your father, your family, your father’s primary care physician, and an experienced elder law attorney to achieve the desired result of curtailing his “waste” of money. Conservatorship may be the possible end result, but the way in which you approach the end result is critical.
    User image
    Roberta S. , Elder Law Attorney answers:
    In Massachusetts, a family member cannot be appointed as conservator or guardian unless your father's doctor signs an approved medical certificate that confirms that he needs a conservator or guardian. You must start conservator or guardianship proceedings in the local Probate Court by filing a Petition. The Petition will not be granted without the Medical Certificate. You can tell your father's doctor about your father's behavior, but the doctor has to decide whether or not your father needs a conservator or guardian.
    User image
    Audrey H. , Elder Law Attorney answers:
    Assuming you father lives in Massachusetts: You could have your father evaluated by a physician to determine if he is still competent to manage his affairs. Though competency is not based on one behavior alone, his behavior may indicate a larger mental health issue. His primary care physician should be able to recommend an appropriate physician to conduct a competency evaluation. If your father is not competent, then you could request that the court appoint a guardian, a conservator, or both. If your father has a health care proxy and power of attorney, you might also consider enlisting the help of the agent named in his documents. Perhaps you, your family, and your father could agree on a monthly budget limiting the amount he spends on these bogus sweepstakes, if they are important to him, or perhaps you could find other ways to help manage his behavior short of court involvement. Best of luck to you and your father.
    User image
    Joanne F. , Elder Law Attorney answers:
    The first issue is: What is your concern? Does your father have limited resources so that the payments are interfering with his ability to support himself? Are the payments substantial so that he runs the risk of running out of money during his lifetime. If the answer to those questions is "Yes," then it may be appropriate to seek a guardianship. If not, then one might regard his payments to be nothing more than silly forms of gambling. Many people go to casinos, buy lottery tickets, play bingo, and bet on football games. Some people spend inordinate sums of money on clothes, cars, gifts to grandchildren. As you can see, what your father is doing could be serious and require intervention. Or it could be regarded as harmless fun. It depends upon the cirumstances
    User image
    Ramsey B. , Elder Law Attorney answers:
    Firsts I would need more facts to give a proper answer. Second, based on your description, it is not clear to me if you are seeking a conservatorship or a guardianship. Third, understand that the process can be daunting. The Court's appointment of a guardian indicates that the ward is someone who, for physical or mental reasons, is considered incapable of managing his or her own affairs, either financial or personal, or, in most cases, both. This is proven by medical evidence. On the other hand, a Conservator is authorized by the Probate Court to manage ONLY the ward’s assets and income. The Conservator does NOT have authority to make health or related personal decisions for the ward. A Guardian has a fiduciary duty to the ward. Specifically these duties include (1) serve the ward’s interests not your own, (2) invest the ward’s assets prudently, and (3) obtain authority from the court for unusual financial activity. The process starts with having a person medically evaluated. I hope this information was helpful.
    User image
    Frederick M. , Elder Law Attorney answers:
    It is possible that your father's behavior demonstrates the need for some degree of protection from financial exploitation. In order to obtain Conservatorship or Guardianship of your father, you would need to have a Medical Certificate completed by the appropriate health care professional who have personally examined your father within the last 30 days.
    User image
    Patricia B. , Elder Law Attorney answers:
    You could try petitoning the court for a conservatorship, taking charge of ALL Dad's financial affairs. Dad would have the right to object. The Court may just appoint a temporary conservatorship and then extend it if necerssary. Please keep in mind that Dad does have the right to give all his money away so you would need to show to the court that his behaviour is endaring his customary way of life and that his bills are not being paid such as living expenses, food, clothing and medicines. If he is able to still maintian his customary way of living thean the court will more than likly state that entering sweepstakes may seem frivilous but it his money to do with what he wants.

       Share: post tweet

    Is the term Conservatorship recognized in the Pennsylvania? I only see terms such as "Guardian", or "Parent of a minor" on the social security forms and in general people don't seem to use that term. I have conservatorship over my adult son, which I received out of state, where he went into a coma, He is now in Pennsylvania. No one in general seems to be familiar with Conservatorship here (nursing homes, etc.),so would Guardianship be a substitute?
    User image
    Mary K. , Nurse and Care Manager answers:
    A Conservator is someone who manages financial work for a COMPETENT person. An elderly oerson who can no longer calculate, cannot see well enough to do bills, but is deemed to have the capacity to appoint a Conservvator to do this work for them. A Guardian is court appointed for someone who lacks capacity and is not competent to care for themselves and cannot engage in a contract. A Conservator may be used when a person does not have a local POA to do this work for them.
    User image
    Robert S. , Elder Law Attorney answers:
    In PA we do not use the term conservator, we use guardian of the person and guardian of the estate. If your son has been moved to PA permanently, you should probably transfer the guardianship to PA because a foreign court is not going to want to maintain jurisdiction over a PA resident. If you need more assistance, contact our office

       Share: post tweet

    I am the fiance of a 64 year old man who is an incapacitated stroke survivor in Fairfield County, SC. He is currently under guardianship by his brother. Is it possible for us to legally marry and, as his spouse, to assume the same rights and responsibilities as a legal guardian? He is totally cognizant of the situation.
    User image
    Mitchell P. , Elder Law Attorney answers:
    If you the court has appointed a Guardian for your fiance, it may not be possible for you to marry. The appointment of a Guardian normally involves a finding of incapacity. You may need an order of the court finding the person has capacity to enter into a marriage. If the person has capacity, he could bring an action for termination of the Guardianship. You need to consult an attorney. This matter is very complex and does not lend itself to a short answer.

       Share: post tweet

    I Iive in Flagstaff, AZ. And after much heartbreak with my dad and his guardianship and conservatorship, I am looking for a lawyer in Phoenix. Two questions: What is an AIP in regards to court proceedings regarding guardianship of an elder parent? In my situation, a lawyer and a private fiduciary have been in cahoots to take away a daughter's guardian and conservator responsibilities over an aging parent with dementia. The lawyer and private fiduciary have seemingly planned this well before the existing court date. Does the current guardian conservator have to be served by the court. And if so, does this individual have to be served in person?
    User image
    Catherine L. , Elder Law Attorney answers:
    An AIP must be an "Adult Incapacitated Person". Also, the only persons that need to be personally served in a Guardianship and/or Conservatorship proceeding are: (1) the proposed ward or protected person; (2) that person's spouse, and (3) his or her parents, if within Arizona. The Guardian and Conservator is entitled to notice by mail of any proceedings for removal, but not by service of process.

       Share: post tweet

    While seeking guardianship for my mother, who has Alzheimer's Disease, my Dad was talked into allowing the Jewish Federation to be his guardian as well. He has since changed his mind and decided that he wants to have complete control of his assets. How does he get the assignment of his guardianship changed?
    User image
    Carol C. , Elder Law Attorney answers:
    Florida Statute 744.341(5) states that a voluntary guardianship may be terminated by the ward by filing a notice with the court that the voluntary guardianship is terminated. A copy of the notice must be served on all interested persons.
    User image
    Ellen M. , Elder Law Attorney answers:
    Voluntary guardianship is governed by F.S. 744.341 and Rule 5.552 of the Probate Rules. Both state that a voluntary guardianship is terminated by the ward filing a notice of termination and serving it upon the court, guardian and all interested persons and thereafter the guardian shall file a petition for discharge.
    User image
    Gregory K. , Elder Law Attorney answers:
    Petition the Court to terminate the Voluntary Guardianship.
    User image
    Howard K. , Elder Law Attorney answers:
    Your father would need to file a suggestion of capacity and motion the court for removal of the appointed guardian. The court will likely schedule a hearing so the judge can speak with your father, hear from the guardian, and then make a determination as to whether it is apprpriate to remove the appointment of the guardian.

       Share: post tweet

    Do I have control over the retirement and social security finances of my elderly parent?
    User image
    Denise V. , Geriatric Care Manager answers:
    The only way you can have any control over your parents finances is if you have Power of Attorney (POA) and are their legal agent to make decisions, etc for them. The POA privilege can only be invoked if your parents have been deemed "incapacitated", rendering them unable or incapable of handling or managing their finances.

       Share: post tweet

    I am taking care of my 96-year-old mother. She has dementia, but is not diagnosed as mentally incompetent. She has a power of attorney (POA) by a bank in another state. Should I get custodial guardianship?
    User image
    Anne J. , Elder Law Attorney answers:
    A guardianship will allow you to make medical decisions on behalf of your mother and handle decisions regarding where she lives. You would not be limited by HIPPA. I am assuming that the bank POA covers only financial matters. The Guardianship can cover limited financial matters as well if necessary
    User image
    Brandon F. , Elder Law Attorney answers:
    Whether you need a guardianship is usually a question of whether you need it to manage her health care or finances. An out of state power of attorney will usually also work in Colorado. In Colorado a guardianship is for health care and a conservatorship is for finances. You can always contact an attorney that is a member of the National Academy of Elder Law Attorneys in your area for a consultation. www.naela.org

       Share: post tweet

    My husband and I have been co-guardians/conservators for my mother-in-law since September 26, 2011. We have never taken a fee, because we spent all of her money on her. She is now deceased, and we feel we can now in good conscience take a reasonable fee for caring for her. Can we charge a fee to her estate according to the rules of Alabama?
    User image
    Douglas M. , Elder Law Attorney answers:
    Alabama provides for 5% of the estate to be paid to a Conservator or an Executor or Administrator. You will need to file a Final Settlement with Probate Court showing the income and expenses of the time you were Conservator. Then you can ask for your commission and any extraordianary services or Guardianship fees. You should meet wtih an attorney asap to file the final settlement and be released from the bond.

       Share: post tweet

    My elderly mother appointed me her guardian. The guardianship form was executed, notarized, and got an apostille. Is this a valid insturment? My mother was of sound mind and fully aware of what she was doing. UPDATE_________________________________ Thank you all for getting back to me. My mother willingly appointed me her Guardian when she was of sound mind. She voluntarily signed a "Guardianship and Consent and Appointment of Guardian" form drawn up by attorney. The document was then signed by my mother, notarized and sealed. I obtained an Apostille for authenticity of this instrument from the State of New York, Department of the State. My question is: Why do I need to have a court appoint a Guardian for my mother? She willingly consented and appointed me, her daughter. Thank you.
    User image
    Mark Z. , Geriatric Care Manager answers:
    Guardians cannot be appointed by anyone but a judge. The very nature of guardianship means that the person having a guardian appointed is not capable of making a decisions. Likely you are referring to either a health care proxy or power of attorney. These are different kinds of powers that may be sufficient to your needs. I'd be happy to talk further.
    User image
    Sonya M. , Elder Law Attorney answers:
    Not sur e what form you men If it apowe rof attorney, yes, New York doesnot alow any one to apoint his/ her own guardian. She could say, in the event I ned a guardian, I wouldlike it to be my son or daughter, and that sounds like aproper form for that, but does it give you power ot act a sguardian, no it does not a guardian can only be apointed by a court, and while her expresed perference would be taken into considertaion, the ultimate choic eis up to the court, which need not honor the perference.
    User image
    Sonya M. , Elder Law Attorney answers:
    Not sur e what form you men If it apowe rof attorney, yes, New York doesnot alow any one to apoint his/ her own guardian. She could say, in the event I ned a guardian, I wouldlike it to be my son or daughter, and that sounds like aproper form for that, but does it give you power ot act a sguardian, no it does not a guardian can only be apointed by a court, and while her expresed perference would be taken into considertaion, the ultimate choic eis up to the court, which need not honor the perference.
    User image
    Elliot S. , Elder Law Attorney answers:
    Guardianship can only be granted by a judge in NY.

       Share: post tweet

    My aunt's nursing home has somehow also become his guardian. I think this is something that my mom agreed to. How can I get that guardianship away from them. I am really concerned that with the current control they have over his life, they are going to steal money from him.
    User image
    Robert B. , Elder Law Attorney answers:
    File a Petition to have the Guardain removed and you appointed. That is why there are Courts.

       Share: post tweet

    My siblings and I all live out of state from our mom. She has mild dementia and is in a nursing facility. Given that she is receiving care from the facility, and also has no financial obligations to speak of, do we need to engage a guardian for her, or can we manage her medical decisions by other means like a POA or proxy?
    User image
    Leonard B. , Elder Law Attorney answers:
    It is very important for your mother to have someone who can speak and act on her behalf if she "lacks decisional capacity." The best option is for her to sign a health care power of attorney and a property power of attorney [sometimes called a "durable power of attorney"]. But if your mom does not have the mental capacity to sign these documents it might be necessary to seek a guardianship in the state where she lives. The attorneys who belong to the National Academy of Elder Law Attorneys are usually very competent in this field.
    User image
    Kimmer C. , Elder Law Attorney answers:
    The laws vary from state to state, so you should seek advise from an attorney in the state your mother lives. However, in general, if you have a financial durable power of attorney and a health care power of attorney, you should be fine. As long as your mother is cooperative in her care, there should be no need for a formal guardianship. If, however, she is non-cooperative, it may be necessary to seek the appointment of a guardian.

       Share: post tweet

    My Dad (88) is going for a surgery for a bleeding ulcer. My family is fully aware that surgery, especially in an elder, has some risks. We are considering, now, doing a power of attorney for him. Is there a particular way that we should do this? Should it only go into effect in the event that he is really out of it, and stuck in the hospital for a long time?
    User image
    Joseph C. , Financial Planner answers:
    A power of attorney that goes into effect upon an event is a springing power of attorney. Most attorneys do not recommend a springing power of attorney because it can lead to a dispute over whether the event has occurred. It is wiser to limit the risk of premature use of a power of attorney by choosing a person who you know will only use a durable power of attorney when necessary.
    User image
    Robert S. , Elder Law Attorney answers:
    Everyone should have a valid Durable Power of Attorney and Advanced Directives (Living Will, Appointment of Health Care Representative). Especially someone going in for surgery. Your Dad should name a primary agent and a back up person. If he can not travel at this time, we can set up a home visit.

       Share: post tweet

    I been taking care of my Mom for 6 yrs and she lives with me. How do I become my mom's care giver? Where do I go to start the paper work in Norfolk, VA?
    User image
    John B. , Elder Law Attorney answers:
    It is important to have the basic estate planning documents created first. A Will, Durable Power of Attorney and Advance Medical Directive will give you the legal authority to act on her behalf if she becomes incapacitated or passes away. A separate 'caregiver agreement' can be drafted to legally show that you are compensated for your services. A caregiver agreement is sometimes an integral document for obtaining certain government benefits as well.
    User image
    Patrick M. , Elder Law Attorney answers:
    If she does not have an advance medical directive or durable property power of attorney AND she is not competent to put those documents in place, then you need to petition the court for the authority to be her guardian and conservator. This is not something you can do on your own.

       Share: post tweet

    My father, a 74 y.o. non-veteran living in Santa Cruz county, has an advanced case of dementia. My siblings and I think he needs assisted living or some kind of full-time care.

    We are having trouble placing him because we don't have the control granted by having Power of Attorney (POA) or guardianship. The legal fees, involved in POA/guardianship seem to be prohibitively expensive. Are those legal rights necessary to help him? How can we get him full-time help?
    User image
    Derryl M. , Elder Law Attorney answers:
    When a person does not execute a durable power of attorney and advance health care directive before being diagnosed with a disease making him incompetent, a conservatorship is needed to get those powers to control the person's finances and medical care.

       Share: post tweet

    My aunt and I have decided, recently that she can no longer care for her sister my mother and I am beginning a process of guardianship for my mom. So far, I have been working on this guardianship process myself (pro se), but am reaching my limits and have some questions.

    I understand that my mother needs to attend the hearing in the court. Are there any situations where she does not have to come? In her case, she has a wound on her leg and needs to keep it elevated and immobile so that it can heal. Can I get a doctors note or something?
    User image
    Beth Ann L. , Elder Law Attorney answers:
    In Virginia, our legal pleading to establish a guardianship allows us to tell the court if attendance at the hearing would be detrimental to the best interests of the person for whom a guardianship is being sought. I have only had 1 person for whom a guardianship was being sought attend the hearing and that was because she still believed herself to be in total control. The judge was most kind in explaining to her why the ruling was to award a guardianship in her best interests. It depends upon your state and often the rules of your locality. You would be best served by at least requesting a consult with a local attorney on the local rules of your court on this matter. My answer in no way is meant to serve as legal advise but rather is an example of how some Virginia Courts handle the issue of attendance at a Guardianship Hearing.
    User image
    Susan H. , Elder Law Attorney answers:
    Your mother's attendance can be waived if her doctor states in writing that her attendance at the hearing would be detrimental to her health.
    User image
    Lisa K. , Elder Law Attorney answers:
    If your mother lives in Florida and requires a guardianship to be established, you will need to have an attorney represent you, as the petitioner and/or the proposed guardian since Florida Probate Rules mandate that a guardian be represented by counsel. That being said, if the court appointed attorney or an attorney chosen by your mother, believes that it is not in the best interest of your mother to attend the capacity hearing, she can report this to the court so that your mother can be excused. Judges feel more comfortable taking aways someone's civil liberties after they have had a chance to eyeball that person first, so unless your mother is bedridden, having her present may actually assist the judge in making a fair decision about what rights to remove. Generally, after the capacity hearing, there are few if any times that your mother will have to go to court. There will be lots of work initially for both the proposed guardian and the guardian's attorney, but once the guardianship is up and running, you will probably need to deal with the attorney on an annual basis when required reports are due.
    User image
    William I. , Elder Law Attorney answers:
    Guardianship laws and procedures differ somewhat from State to State, so you really need to review the local rules. In New Jersey, where I practice, the initial papers filed with the court must include affidavits of two physicians. The court rule (Rule 4:86-2(b)) is quite specific about what each doctor's affidavit must include. The rule clearly states that each affidavits should include the doctor's opinion on whether the alleged incapacitated person is capable of attending the hearing, and if not, the reasons for the inability. I always ask the doctors about this when I am preparing their affidavits.
    User image
    Linda E. , Elder Law Attorney answers:
    In general (state procedures may vary), once you file for g'ship of your mother, the court will appoint a lawyer to represent her. That lawyer will determine whether his/her client (your mom) should attend the hearing. If she is very confused all the time, it may not be helpful for her to attend. If she is physically disabled, it may be burdensome.
    User image
    Linda K. , Elder Law Attorney answers:
    State probate law governs your guardianship action and there are usually good cause reasons the proposed ward does not have to attend the competency hearing. However, most states require a guardian ad litem or attorney be appointed to represent the proposed ward, here your mother, and the guardian or her attorney will determine if she is capable and needs to attend the hearing. You may want to contact the guardian ad litem or attorney and provide the doctor's letter to him or her.
    User image
    Ross H. , Elder Law Attorney answers:
    This is a state specific question which means that some states may require it and some not. A better statement is that your mother has the RIGHT to attend the hearing. The lawyer handling the guardianship for you should be able to explain the details applicable to your state.
    User image
    Kimmer C. , Elder Law Attorney answers:
    The answer to this question will very from state to state. In Idaho, the proposed ward does not have to appear at the hearing if they do not want to. In Idaho, the ward has a court appointed attorney that appears on the ward's behalf.
    User image
    Sasha G. , Elder Law Attorney answers:
    Not only are guardianship rules governed by each state, but what to do in situations like you described may be determined by the policy in that particular courthouse. Check with the court and see what they require.
    User image
    Ramsey B. , Elder Law Attorney answers:
    The guardianship rules are established by the state in which you file for guardianship. Please consult the rules of that state.

       Share: post tweet