When is a conservatorship actually necessary?

Less often than families are told. It is the fallback where nothing was signed in advance, and the better answer is usually the documents that make it unnecessary.

Less often than families are told, and it is worth understanding what it is before anyone files.

A conservatorship is a court appointment of someone to make decisions for an adult who can no longer make their own. It is a proceeding, not a document: a petition, notice to relatives, a court investigator who interviews the proposed conservatee, a hearing, and — if the court appoints someone — continuing supervision, periodic accountings and court approval for significant decisions.

It is public. It is expensive. It removes rights from an adult, which is why the court takes it as seriously as it does.

When it genuinely is required

• Where no power of attorney or health care directive was signed and the person no longer has capacity to sign one.
• Where documents exist but are being disregarded, or where the named agent is the problem rather than the solution.
• Where an adult is being financially exploited and someone needs authority now.
• Where there is real disagreement in a family about who should be acting, and an outside decision is the only thing that will settle it.

In those situations it is the right tool and we will say so. We refer that work to counsel who do it every day, because it is a litigation practice and we are not one.

When it is not

Far more often, a family arrives believing a conservatorship is required and it is not, because a valid durable power of attorney already exists and nobody realized what it covered. Or because a bank refused to accept one and the answer is a letter rather than a lawsuit. Or because the person still has capacity to sign, which is a medical and legal question rather than an impression formed at a family dinner.

Capacity is not all-or-nothing

Someone may lack the capacity to manage a portfolio while retaining the capacity to choose who should manage it for them. That distinction is doing enormous work here, and it is the reason a diagnosis is a signal to act quickly rather than a conclusion that it is too late.

What to do this month

If you are watching a parent lose capacity and the documents do not exist, that is the most urgent estate planning situation there is. Every week the window narrows, and once it closes the only route left is the one this article is about.