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Attorney Renee C. Walsh

Guardian / Conservator – Will you need one?

Guardianship / conservatorship lies in the realm of probate law, an area of law that each one of us who intends to grow old needs to look at because we could be in a situation where a guardian and conservator is appointed and we are placed in a nursing home with no hope of discharge. This happened to someone close to me and I took over as guardian and conservator to get her out of the home, but I met with roadblock after roadblock and ultimately did not prevail.

The person I am speaking of is a 90-year-old alcoholic. Her daughter, who resided across the state, wrote a letter to the probate judge where the 90-year-old lived and told the judge of her alcoholism. The letter was not notarized or official in any form. Based on that letter along with a non-specific petition completed by a local attorney and requesting a guardian / conservator for her protection, the judge ordered temporary guardianship / conservatorship. After 90 days, the temporary guardianship / conservatorship became permanent with additional proof in the form of a letter, though again without jurat (oath) or notarization, from the elderly woman’s physician.

The elderly woman wanted to be released and to go home and so contacted me, an attorney friend. I assessed the situation, and made a plan of action and became her guardian / conservator. Next, I contacted the physician and told him of my plan to have her discharged and return home with supervision and he was supportive. Then, (and this took several months), I petitioned the court for removal of the guardianship / conservatorship and in the petition described the supervision that she would have. Without my input, the court sua sponte (on its own motion), ordered a limited guardian who went to the elderly woman and asked her about the petition and her desires. She asked the woman if she wanted an attorney and the woman advised she already had one, and the court appointed an attorney anyway. Now there were two attorneys and two guardians involved and the court ruling like in the old Wild West. The daughter did not want me involved any longer and I was spinning my wheels. My hands were tied. The woman is still in the home, years later, now with a new guardian. She will never be released because her daughter wants her in there (she doesn’t want to have to take care of her mother, herself) and the court does not want to have to deal with an alcoholic.

This is what happens. If you are a drinker, or if you aren’t’, one day your relatives or friends may request the court to have a guardian/conservator appointed for you, who may then put you in a nursing home. To you it will be like prison, from which you can never escape. For the drinker, is it better to allow them to possibly drink themselves to death, but have their freedom in the meantime, or is better have them safe in a nursing home, but feeling like they are in prison. In any event, a person should anticipate the future possibilities and protect their freedom as they age.

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