Deciding to conserve a loved one is a complex and sometimes painful process. You want the best care and quality of life for the people you love, but it can be daunting to consider the intervention and support of external parties.
Because application for conservatorship requires the involvement of the court, it’s important to understand how the court evaluates your loved one’s situation and capacity as well as what means you have to appeal the decision the court makes.
What information does the court use to determine incapacity?
After the court has determined that it has clear and convincing evidence that it has jurisdiction in the case and your loved one has been advised of his or her right to retain an attorney, the court will look at evidence regarding your loved one’s capacity to care for his or herself. This evidence must include
- A written report or the testimony of one or more physicians who have examined your loved one within the last 45 days.
- The report must contain specific information on your loved one’s condition and how it affects his or her ability to care for his or herself.
The court may also accept the testimony of other professionals or friends and family who are familiar with your loved one and his or her capabilities.
In deciding if a conservator should be appointed, the court will look at the following factors:
- The abilities of your loved one
- Your loved one’s ability to state his or her preferences regarding the care of his or her own person and/or the management of his or her affairs
- Any relevant material obtained from your loved one
- Evidence of your loved one’s past preferences and lifestyle choices
- Your loved one’s cultural background
- The desirability of maintaining continuity in your loved one’s life and environment
- Whether your loved one has previously made adequate alternative arrangements for the care of his or her person or the management of his or her affairs (such as power of attorney)
- Any supportive services, technologies, or other resources that are available to help your loved one meet his or her needs
What to do if you disagree with the court’s decision?
It’s important to know that if you are unhappy with the decision of the probate court, the appeals process is complex and often ineffective. While you do have 45 days from the date of the probate court’s decision to file an appeal with the superior court in the same jurisdiction, the superior court will not substitute its judgment for that of the probate court. The superior court will only sustain the appeal if there are serious violations of procedure made by the probate court.
In other words, it is difficult to reverse the judgment of the probate court. This is one more reason to think long and hard before applying for a conservatorship for your loved one.
It is difficult to make the decision to conserve a loved one. Although a loved one’s needs may be taken care of by a conservator, it’s important to fully consider all available options before resorting to conservatorship. There are several alternatives to a conservatorship that are less restrictive and give you and your loved one more control over your loved one’s care.
Before applying to conserve a loved one, you must determine how much your family wants the state involved in a private family matter. Give us a call if you need help with this decision.