The Disadvantages of Guardianship/Conservatorship Legal Proceedings

In the event that you or a loved one becomes incompetent, any person can start the proceedings for a guardianship (for a child) or conservatorship (for an adult). This may put you at several disadvantages if you were not prepared for such an event, such as:

  • The legal process of conservatorships or guardianships
  • Loss of control over the court-appointed guardianship or conservator
  • The process is required to be in a public court of law and be supervised by a judge
  • Legal representation is required to be provided, which leads to expensive legal fees
  • It is naturally a long process
  • There is no requirement that the court-appointed conservator or guardian must act according to your wish or to determine what your wishes are
  • The court-appointed conservator or guardian only needs to take actions which they think are in the best interest of you or conservatee

A great illustration of how this legal process works is home ownership. Assume that you are 45 years old. For the past 10 years, you worked on weekends to repair and maintain your father's house, knowing that someday it would be yours. Also assume the location was overlooking the waterway where you grew up. Then assume that, before you could engage in the appropriate amount of planning, your father was struck by a car in a crosswalk and was rendered mentally incompetent, although he still had many daily needs and activities. Because your father had not prepared any legal documents dealing with this contingency, a conservatorship for his estate would be opened for him.

When the conservatorship was filed for him, assume that the court declined to appoint you as conservator, and appointed the son of your father's spouse [not your mother.] The conservator decided that a nursing home was the best place for your father and sought court approval to sell all of the assets of the estate for resources by which to pay for this institution. Naturally, you objected to the sale of the house, but your objection, despite your father's willingness to agree, fell on deaf court ears. The judge, caring little about your wishes, or your past efforts, and your father's desires, instead seeks to expedite the conservatorship and order what he/she feels might be in your father's best interest, even though it may not.

You may think this is ridiculous, but it happens all the time. This example illustrates the disadvantages of a guardianship or conservatorship. However, since most people do not take preventative measures, such legal procedures cannot be avoided in some instances, and a discussion of the process follows. It should be noted that there is almost no reason to engage this process, since this entire legal proceeding can be avoided with some preventative planning and legal counsel. If you are interested in learning more, contact member services.

Posted in: Conservatorship