Tuesday, July 28, 2015

Conservatorship Conundrum: Court Process That Can 'Unperson' You Within Minutes


You may have heard the term "conservatorship" in the context of entertainment news. Older celebrities like the late Mickey Rooney, the star of such film classics as The Adventures of Huckleberry Finn and The Black Stallion, and the late Peter Falk, who played the shrewd police lieutenant on Columbo, were placed under conservatorships.

But conservatorships aren't just reserved for older adults. American pop princess Britney Spears and former child star Amanda Bynes were conserved for running amok and posing a danger to themselves.

Let's look behind the headlines and learn what a conservatorship, also referred to as a guardianship, is.

An Age-Old Solution to an Age-Old Situation

The guardianship concept dates back to Roman times. Marcus Tullius Cicero (106-43 B.C.), a Roman philosopher, lawyer, and statesman, codified the guardianship concept into Roman law, with an eye toward managing an incompetent's property.

In England during the early 1300s, guardianships appeared in common law with the passage of De Praerogativa Regis, a statute that allowed kings to take ownership of the property of mentally disturbed individuals. By the early 1600s, an heir's guardian obligations were codified and crossed the Big Pond to the United States.

In the aftermath of the American Revolution, the states employed parens patriae (Latin for "parent of the nation"). The law allowed the state to exercise jurisdiction over persons with disabilities or incapacities by appointing officials, usually guardians, to care for these persons if they were unable to care for themselves.

Protectors of the "Unbefriended" 

So what exactly is a guardianship? According to a report entitled "Public Guardianship After 25 Years: In the Best Interest of Incapacitated People?," a guardianship is described as:
"... a relationship created by state law in which a court gives one person or entity (the guardian) the duty and power to make personal and/or professional decisions for another person (the ward or incapacitated person). [...] Guardianship can 'unperson' individuals and make them 'legally dead.' Guardianship can be a double-edged sword, 'half Santa and half ogre.'"
The long and short of it is, if no family member or friend is willing to step up to serve as legal guardian to a ward or an incapacitated person, or resources aren't available to retain a private guardian (such as a professional fiduciary), then a public official or publicly-funded organization will be appointed as legal guardian, the guardian of last resort.

The State Holds All the Cards

Because of a guardianship's far-reaching power to take over people's lives, you'd probably think that guardianships would be legislated, regulated, and controlled at the federal level. Not so -- adult guardianships are a state-based legal function.

The foundation of the public guardianship system is established by general guardianship code, while legal proceedings can vary by state.

Guardianships by the Numbers

You might be wondering how many people's lives are managed under a guardianship. The answer is that no one knows for sure. By one estimate, about 1.5 million Americans are under a guardianship at any given time, which is probably an underestimate.

One Size Doesn't Fit All Situations

Different types of conservatorships exist. Let's use California as an example. In "The Golden State," conservatorships come in four forms: general conservatorships, limited conservatorships, temporary conservatorships, and Lanterman-Petris-Short conservatorships (LPSs). The first three forms are considered probate conservatorships based on California Probate Code, while the fourth form is designed to care for individuals suffering with serious mental illness and who need special care. Let's look at the first three forms.

General conservatorships are ordinarily used for adults who are unable to take care of themselves or their finances. Here, the judge would choose a person or an organization, the "conservator," to make some or all life decisions for the protected person, the "conservatee." Things like medical and housing decisions would be made by the "conservator of the person." The conservator of the person might also make property decisions, or someone else might be appointed to do that, the "conservator of the estate."

Adults with developmental disabilities who are unable to fully care for themselves or their finances may be placed under a limited conservatorship. These conservatees don't usually need a high level of care or assistance, as compared to conservatees in general conservatorships. They often suffer from long-term developmental disabilities, such as mental retardation, cerebral palsy, autism, and other impairments, that started before they turned 18.

When a conservatorship is required urgently, the judge may grant a temporary conservatorship by appointing a temporary conservator of person and/or property for a stated period of time. A temporary conservatorship is a "Band-Aid" over a potentially festering situation and is usually granted if the matter is urgent.

A Double-Edged Sword 

As a legal concept, a conservatorship protects and manages the personal care and/or financial affairs of a vulnerable or dependent adult. In its practical application, however, a conservatorship is the most restrictive alternative and most intrusive option to addressing a situation.

In instances where elders are being abused, neglected, or exploited, a conservatorship can create new problems and even perpetuate the abuse when a court-appointed protector seizes "supreme control" over a conserved elder.

The cold hard fact is that a conservatorship can strip a person of his or her basic freedoms--sometimes in just a matter of minutes.

It Could Happen to You

The scary thing is any of us could become a ward of the state. Growing old and forgetful, getting ill, becoming unable to take care of ourselves or our affairs, getting into a crippling accident, or depending on others for our care could happen to any of us. Losing capacity doesn't distinguish between the genius or the average, the rich or the poor, or the healthy or the unhealthy.

In the next blog post in this series, we'll learn "who" does "what" in a conservatorship and describe how a conservatorship is formed.

Full Article & Source:
Conservatorship Conundrum: Court Process That Can 'Unperson' You Within Minutes


StandUp said...

Another good article from Martha Lanham. I appreciate her dedication to the subject!

Cassie said...

I love the title of this article and the subtitles too! Good article!

Norma said...

I agree Cassie, I especially like The State Holds All the Cards

Mike said...

I believe Danny Tate was conserved in a hearing that lasted 7 minutes if that.