OBTAINING A CONSERVATORSHIP YOUR PARENT
My mother is 78 years old and she has recently been diagnosed with early-stage Alzheimer’s. Both her neurologist and geriatric care physicians informed us that she still knows what she is doing and can make meaningful decisions on her own behalf.
I have two brothers that believe our mother should go to a board and care where she can be safe, yet neither one of my brother’s wants to get involved in the legal process. Our father does not want to serve given his ill health. I believe we need to establish a Conservatorship for our mother.
Q. Can I set up a Conservatorship without getting the approval of my siblings and father?
A. Absolutely. So long as neither the brother nor your father, (or anyone else for that matter) files a formal objection or competing petition with the court. As the conservator you will be the one who will be making all the major decisions for your mother, so this is a very important responsibility.
The law is quite broad as to who can serve as a conservator for your mother. Most state laws allow the following category of people to serve as Conservator. Among them include: The spouse, children, partner, relative, interested person or even friend can serve as the Conservator.
Q. Does The Court Have A Preference In The Nomination Process?
A. Yes. The overriding consideration for the court in determining who will serve as conservator, the court will consider who will act in your mothers best interests. When the court cannot make a choice in this regard, the court, if need be, also has the authority to appoint an independent fiduciary to act as conservator.
Most states require courts to follow a statutory presumption as to who would have preference in the nomination process. The following chronology makes-up the statutory preference:
- Adult child
- Public Guardian (fiduciary)
Q. Does My Mother Have A Say In The Appointment Of Conservator Process?
A. Yes. In fact your mother in choosing who will act as her Conservator is usually the most important factor for the court to consider. Assuming that your mother still has the mental ability, or better known as the legal capacity to choose who will be her Conservator. In addition, the court will need to be convinced there is no undue influence being asserted against your mother in this regard. So yes, assuming your mother has legal capacity and there is no evidence of duress or fraud at play, your mother can choose her own Conservator. Again, this is always subject to the courts determination that it would not be in your moms her best interests.
Q. What If The One With Priority Does Not Want To Serve?
A. If the person closest to the top of the list does not want to serve, he or she can still nominate someone else. In fact this often happens. If your father has legal capacity he can nominate you. In the end, regardless of this order of preference, the selection of the conservator is up to the judge, and the judge makes this decision by considering the best interests of the elder.