Guardianship or Conservatorship
What is the difference?
Guardianship and Conservatorship are relative new terms when speaking of elders. Again these have been historically more depicting a relationship that involves a child. Again with the graying of our society and the nomadic family changes were inevitable. . Our senior population is one of nuance to our society especially those requiring help and not having family to pick up the need. 75 to 100 years ago, family was always close or a neighbor that had lived close (geographically) was available to help in an emergency.
The large numbers of seniors and disabled required a legal mechanism to continue living within our communities independently as they age. Frequently, family have been able to take on this new role. However, more and more families are feeling the stretch of taking care of the immediate family and senior family members at the same time (thus the Sandwich Generation). Employment for both the adults in a nuclear family is the norm; therefore moving back home to take care of Mom or Dad may be out of the question. And of course, there is the likelihood that no adult children are in the picture due to no children born of the union or prior death of children. So where are we?
The elders of our communities need to begin planning for their own needs sooner rather than later. We are the generation that brought us Long-term Care Insurance; we are the generation with the nest egg and an active senior live style. The problem is frequently that is the end of the proactive planning. 2005 through 2011 financial crisis hit and the nest egg was eaten up while we made ends meet and our rainy day fund was depleted. The crash of the housing market left many of us without a home to fall back on as our safety net. Now what do we do?
In the late eighties and nineties we found an occasional senior who fell through the cracks, when health problems arose. The crash of the housing market left many on the street without benefit of a home and not the slightest idea how to meet their own needs as they aged. In other words, the learning curve was straight up. Perhaps even that would not have been so bad, if it wasn’t for an increase in dementia across the board (Alzheimer’s, Parkinson’s, Depression and so many more). People living in a constant state of excessive stress seem to develop more disease and dementia.
I am sure the destination is becoming clear. Without family and/or resources to pick up the needs and help, many people were left on their own to meet the needs, and most did not have any idea past health insurance and skilled nursing homes being the dungeons of the twentieth century.
Our social services and legal experts pushed for guardianship and conservatorship to help our declining population through this time. Having few guidelines and using the CPS model, we began seeing the growth of the cottage industry of Senior Services. Along the way it became clear to medical and social services that a legal mechanism was necessary when the person was unable to meet their own needs. Looking at CPS and our mental health system, it seemed guardianship was the best tool to meet the need. Using the tool to meet either medical needs (guardianship of person, only) or financial help (guardianship of finance) it became immediately known that most people needed guardianship of both (guardianship of person and estate). Conservatorship is of financial matters only. Some states felt the social service agencies within their legal realm could take on the role of the ‘person’ needs and this left only the financial aspect. The states wanted to have a way to control how and when the money was used, therefore they used the model set up for children of the very wealthy left without a parent to oversee the finances. We will speak of Special Needs Trust in a future article.
Next week we will begin to look at the pros and cons of both these answers. In the meantime it is good to know what legal tools are at our fingertips and what services are available without need of a person to sign into them for you.