Your parents have always been there for you. However, times are changing. Even if you don’t always see it, they are getting older. And depending upon their situation, physical impairment or mental health problems could take away your elderly parent’s ability to live in their usual safe, stable environment.
Sometimes their situation can get so bad that you may need to act on their behalf. On this page, I will explore some common situations and how you can help your parents through them.
Consider this Scenario: Your father is in his eighties and lives alone. He has hip and knee problems, and has fallen a few times. He also displays signs and symptoms of dementia. He has locked himself out of his house, drove himself places and forgotten how to get back home, and often forgets to take his medications. You have concerns about your father’s continuing ability to pay his bills on time and to manage his money. You don’t feel that he can handle living by himself any longer. But, whenever you try to assist him, he stubbornly resists your help.
Many parents don’t want their children to help them. But is there anything you can do?
This is a really difficult, but sadly very common situation. There is no easy solution. Oftentimes, there is no “right” answer. When adult children have to take care of their elderly parents, it is a reversal of the normal family role, and it forces adjustments.
When you recognize that your parent can no longer safely take care of themselves, there is a legal procedure known as a “conservatorship” that may offer a solution to your problem.
You can petition to be appointed as your parent’s conservator through the Probate Court. Conservators are appointed by the Probate Court with the legal authority to make some, or all, of the necessary decisions for another person.
Conservatorships are not limited to situations involving adult children and parents. Any adult that is no longer capable of managing their own lives can have a conservator appointed to assist them. For example, an Aunt or Uncle, or even a close friend.
This is never a decision undertaken lightly. Loss of your ability to control the way that you live your own life is traumatic and upsetting. Conservators hold tremendous power. They make decisions for another person, and the conservator’s decisions have the force of law. If there is a conflict between what the conserved person’s family wants, and what the conservator believes is best, the conservator’s decision will win out. So, before appointing a conservator, the Probate Court Judge must specifically find that the individual can’t care for themselves, and that the appointed conservator is the proper person for the particular conserved person.
When they act, conservators are not supposed to impose their own judgment. Instead, they are to make decisions in the way the conserved person would have done so, and they must always try to act in the least-harmful way to the conserved person’s ability to enjoy their life.
Voluntary and Involuntary Conservatorship
Conservatorships can be voluntary (meaning the conserved person requests the conservatorship) or involuntary (the conservatorship is appointed regardless of the conserved person’s desire). Conservatorships can be temporary (30 days) or indefinite in nature.
When considering whether a conservator is needed, the Probate Courts will address the following questions:
Can your parent take independent care of themselves?
- Can your parent make reasonable decisions on their own behalf?
- Does your parent live in unsafe conditions?
- Can your parent manage their own money?
- Does your parent have physical illnesses or conditions, or mental health impairments, that prevent them from being able to take care of themselves?
Types of Conservatorship
If the Probate Court Judge believes that a conservator needs to be appointed, there are two types of conservatorships that can be put in place:
(1) Conservator of the Person; and
(2) Conservator of the Estate
Each has a very different function. It is possible that one conserved person might require both types of conservatorships. A single person could be appointed for both roles, or different individuals could be appointed for both positions. While family members are preferred, in some cases it may be necessary to appoint an independent conservator such as an attorney. The decision depends entirely on the needs of the conserved person and the abilities of the appointed conservator.
The Conservator of the Person manages the day-to-day personal affairs of a person who cannot meet basic essential requirements for personal needs. These needs might include food, clothing, shelter, health care, and safety. For instance, if a conserved person is largely confined to their bed because of physical limitations, the conservator might need to manage everything from their daily personal care to coordinating transportation for their necessary doctor’s visits.
The Conservator of the Estate manages the financial affairs of a person who is found by the Probate Court Judge to be unable of doing so for himself or herself. The functions of the conservator of the estate may include gathering the assets, accounting, bill paying, managing insurance and public assistance benefits, and overseeing the conserved person’s long-term investments.
In every case, the conservator must report into the Probate Court to affirm what they are doing for the conserved person. Conservators of the Estate will need to provide a detailed financial accounting of the conserved person’s assets. The probate judge will review the information provided, make appropriate suggestions, and make final decisions to manage the conserved person’s care and/or finances going forward.
What the Conservator Can’t Do
There are some decisions that cannot be made by the conservator. These particular decisions require the Probate Court Judge’s direct order:
- Placement into a long-term care facility or nursing home.
- Changing residence or their lease.
- Disposing or selling of household furnishings.
- Selling, mortgaging, or transferring real estate, including their usual home.
- Gifting from income or assets.
- Consenting to psychiatric medication.
- Changing social media accounts, electronic communications, or other digital assets.
Realizing that your elderly parent can’t take care of themselves is heartbreaking. However, you are their child. If you don’t act, who will? Thankfully, there are some procedures in place, like conservatorships, that can assist you in this difficult transition.