Guardianships and Conservatorships
Guardianship, Conservatorship, Power of Attorney and Durable Power of Attorney —these are all legal tools that allow a third party (such as a family member) to manage the affairs of an individual who is not legally competent to manage their own affairs. The Boston elder law attorneys at Blake & Associates can help you and your family choose the right tool for your family and your particular situation.
Guardianship gives legal authority of decision-making for a person with reduced capacity to a third party (usually a family member). It can take the form of Guardianship of the Person (authority over the physical person) or Guardianship of Person and Estate (authority to make decisions for the physical person and their financial affairs).
Conservatorship gives a third party authority over finances and business affairs when they are not legally competent to manage their own affairs.
At the mental health law firm of Blake & Associates our attorneys have helped hundreds of families secure guardianship or conservatorship for elderly, disabled, or mentally ill family members. Both of these tools require court approval and may or may not have the approval of the person whose interests are being protected.
We have a great deal of insight into this situation and we understand that many families are confused or misinformed about guardianship and conservatorship.
Myth: A mentally ill person is, by definition, not competent to manage their own affairs and a judge will always grant conservatorship.
Fact: People who are mentally ill are presumed by the court to be competent unless there is evidence proving them to be incompetent. In some instances a Durable Power of Attorney may be a more appropriate legal tool. Our attorneys will gain a complete understanding of your particular situation and will advise on the proper tool.
Myth: A mentally ill person must display extreme or violent behavior before a judge will grant guardianship.
Fact: Guardianship is more available than people have been led to believe. The court will seek to protect persons with reduced capacity.
Myth: Guardianship is intrusive and takes away the person's rights and liberty.
Fact: The intrusion of a Guardianship or Conservatorship is generally confined to the areas of life in which the person is not capable of making sound decisions. In our experience, most conservators are very prudent about when they exercise authority.
One of the potential benefits of a Power of Attorney is its informality. Yet the formal court involvement in guardianship or conservatorship can also be a benefit. A formal accounting of all expenditures must be made to the court. This can assure concerned family members that the financial affairs of the dependent individual are being handled properly.
Each situation is different. Let our experienced attorneys help you determine if guardianship, conservatorship, Durable Power of Attorney or some other mechanism is the best option for your family and your family member. Contact our office to speak to an attorney.