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Conservatorship and guardianship basics

If you have a loved one to take care of, either a special needs child or a senior, you know how demanding it can be. In the daily routine it's common for people just like you to neglect the long-term planning that is essential to being sure their needs are met in all potential circumstances.

It's important to be sure that the right legal framework is set up for their future needs. This is where "guardianship" or the more limited "conservatorship" are important concepts. Whether the key issue is your ability to make legally binding decisions or to be sure someone else is there if something happens to you, an experienced estate planning lawyer can guide you through your options.

Understanding the terms

A conservator is someone who is appointed by the court to oversee the financial issues for someone else. If you have a life insurance policy to be sure that your special needs child has resources in case something happens to you, appointing a conservator is the next important step. It should be someone you can trust to look after your child in case the unfortunate happens.

By contrast, a guardian is someone who has full responsibility for day-to-day decisions of another person who cannot decide for themselves. This could also be a special needs child, but in many cases a senior with dementia or alzheimer's may need a guardian. A guardian's responsibilities include:

  • Residency and care
  • All financial management, just like a conservator
  • Important medical decisions, including treatment and end-of-life questions

When planning for a special needs child, these responsibilities may fall to one person you trust or be divided among people you trust.

Planning is important

Every special needs child who cannot care for themselves should have an estate plan which includes the appropriate conservatorship or guardianship plan in place. This is essential for your own peace of mind and knowledge that they will be cared for when you are gone.

In the case of seniors who may be starting to fade, it is much easier to set up a guardianship as part of an estate plan when they are still able to make decisions for themselves. The process is not difficult, but it does require the help of an experienced estate plan lawyer.

The best time to act is always today

For the family of an incapacitated senior, an estate plan which includes guardianship is vital. But it may be too late if they are already unable to make decisions for themselves. It may be time for file a petition for guardianship.

This process will investigate all aspects of their lives as well as the potential guardian to make sure that it is the best alternative for their quality of life. A senior always has the right to their own attorney, and other members of the immediate family .

If it comes to this, it's best to have an agreement for guardianship worked out with everyone who might potentially be involved in advance. The process is involved and usually has to be approached as a family. This is why an estate plan, in advance, is so important.

There are alternatives

No matter what, conservatorship or guardianship may not be the best choice for your special needs child or senior. The best place to start is with an attorney who can help you explore these and all other essential part of planning your estate for your own peace of mind.

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