Dementia, And How To Avoid Guardianships and Conservatorships With Proper Planning

Advanced age, unfortunately, is often accompanied by dementia, whether from Alzheimer’s disease, major or minor strokes, or any of a number of other illnesses.  The more severe the dementia, the more help seniors need getting through the day.  Seniors with dementia can be at great physical and financial risk due to their own bad decisions and vulnerability.  Depending on the situation, protecting seniors with dementia can be difficult.

From a legal standpoint, there are two main options when a senior can no longer handle his or her own affairs (otherwise known as “the easy way and the hard way”).  The first option — the hard way — involves filing a petition with the probate court for a “guardianship” and a “conservatorship”.   In Michigan, a “guardian” may be appointed by the court to make personal decisions, such as where the senior will live and what health care he will receive, while the “conservator” handles financial matters. The two roles can be filled by separate people or by the same person, and many times the roles are filled by a family member (son, daughter, etc.).

Even though they “get the job done”, court-ordered guardianships and conservatorships are not the best solution for many reasons:

  • They take away the protected person’s rights – he can no longer make decisions for himself.
  • There is a public hearing where he is declared to be incompetent, which can be hurtful.
  • There is the cost of hiring attorneys to get through the process.
  • The protected person’s situation and finances become part of the public record and the guardian and conservator must make annual reports to the court.
  • Depending on the state, many financial and estate planning can only be taken with court approval, which causes delay and increases legal fees.
  • Beyond financial drain, there is an emotional drain in dealing with “the system” and feeling that the family has lost control.

 Avoiding Guardianship

So, if guardianships and conservatorships are so bad, why does anyone use these procedures? The answer is usually simple:  “Lack of planning”. 

Often, guardianships and conservatorships can be avoided through estate planning while the senior is healthy and competent.  By appointing agents through durable powers of attorney, health care powers of attorney (sometimes called patient advocate designations or living wills) and trusts, a person can choose who will make decisions for him when he is no longer able to do so.  This can avoid family disputes and the cost and delay of court proceedings, while at the same time reducing the amount of emotional drain.  It can also give the appointed person more freedom to take steps to protect the senior.  So, make sure that you have a comprehensive estate plan in place, and that you have a legal review every couple of years to make sure the plan still complies with the law and meets your goals. 

For more information on estate planning, visit attorney Glenn R. Matecun’s online learning center at www.MichiganEstatePlans.com

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Explore posts in the same categories: Durable Power of Attorney, Estate Planning

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