1. Home
  2.  » 
  3. Estate Planning
  4.  » Guardianships/Conservatorships

When A Loved One Loses Legal Capacity

When your elderly loved one is no longer able to take care of their finances and manage day-to-day decision-making, it may be time to seek a guardianship or conservatorship.

At Center for Elder Law & Estate Planning, we have over a century of combined legal experience and more than three decades of health and elder law practice. We understand the issues and how to effectively and compassionately resolve them to protect your loved one and their assets.

The Difference Between A Guardianship And A Conservatorship

The difference between what a guardian does and what a conservator does has to do with whether that person is in charge of protecting the elderly person, or the elderly person’s estate. In order to be deemed incapacitated, a person must be clinically diagnosed with a condition that prevents them from being able to take care of their physical needs and make financial decisions.

  1. A guardian is in charge of protecting an incapacitated person. When an elderly person does not have a durable power of attorney or health care directive and proxy, then family members may need to designate a person to be the guardian. A guardian can make routine health care decisions, but not bigger decisions such as whether to administer anti-psychotic administration medication, significant chemotherapy or electric shock therapy. A guardian is appointed via the probate court and must regularly report to the court.
  2. A conservator is in charge of protecting the elderly person’s estate after a judge decides that the elderly person cannot do it. Appointed by the court, a conservator ensures that the “protected person” has meals, clothing, shelter and medical care. A conservator can also pay bills, make investments and establish an estate plan. A conservator must obtain court approval to make larger financial transactions, such as the purchase or sale of a property.

If an elderly person has some physical and mental limitations but is still able to indicate that they need help and wishes to assign someone durable power of attorney and create a health care proxy, this can circumvent the need for a guardian or conservator.

When Is An Attorney Needed?

An attorney is assigned to the “protected person” or “incapacitated person” (this is an adversarial proceeding) when specific separate authority is sought. There are differences in the terms used for the person receiving the care:

  • The elderly person is called a “protected person” under a conservatorship.
  • The elderly person is called an “incapacitated person” under a guardianship.

Guardianship and conservatorship laws and processes vary by state and do change over time. If your loved one is in need of someone to protect them, be sure to work with an attorney who has years of experience and focus in this area of law.

Work With The Proven Massachusetts Elder Law Team

The team at Center for Elder Law & Estate Planning welcomes your estate planning and elder law questions. We are here to help, whether you need urgent health care and estate planning assistance or want to make plans for the future. Serving the greater Boston and eastern Massachusetts area. Call 339-499-4306 or send us a question or brief summary of your needs via our contact email form.