As our parents age, we will each be faced with unique challenges with which few of us will be prepared to deal. It is natural for us to administer care to our infant children. It is an altogether foreign concept to think of having to care for our parents in much the same way as we do our children. But for many, that time will come. As parents, we are authorized by law to make all decisions regarding the care and welfare for our children. However, we do not have such authority over our parents. We do not have any legal authority to interfere with the freedom of another adult without legal intervention which includes the application of due process. If and when the time comes that our parents, or another adult loved one, are no longer able to make important decisions for themselves the law provides a way for us to care for them.

When a person is not mentally competent to manage their own affairs - either through age and associated dementia or injury - a conservator and/or guardian can be appointed to assist in their care. A lack of mental capacity can also exist where a child with a disability from birth, or early life, reaches the age of majority but nevertheless is unable to care for him or herself. In each of the above scenarios, a conservatorship and guardianship is the answer.

When a conservator &/or guardian is appointed, the person for whom the appointment is made is referred to as the 'ward”. This process is accomplished when a petition is filed in the Probate Court in the county in which the ward resides. It is a relatively informal process, as far as legal matters are concerned. A petition for conservatorship and guardianship are typically filed simultaneously.

Conservatorship

A conservator is appointed to oversee the financial affairs of the ward. This person would be responsible for all financial affairs for the ward as if he or she were managing their own affairs. The conservator would receive any income to which the ward is entitled, would make deposits and withdrawals, write checks, etc. on behalf of the ward. The conservator would “manage” the bank accounts as well as any other accounts of the ward. The conservator may be required to make periodic accountings and may be required to post a bond (essentially an insurance policy).

Guardianship

A guardian is appointed to oversee the welfare of the person of the ward. The guardian would have the legal rights a parent would have over their child. The guardian would have access to medical records and would sign medical forms for treatment, etc.

In short, the conservatorship and guardianship laws provide a mechanism for adults to “exchange positions” with their declining parents. In this manner, the aging parent can be cared for in their remaining years by those who care for them most.