Frequently Asked Questions (FAQs)

Alternatives to Conservatorships and Guardianships

If my mother can no longer manage her assets or care for herself, are there any alternatives to a conservatorship?

Generally yes, if your mother has previously executed a complete estate plan:

First, most living trusts allow the Successor Trustee to step in at such times to manage the trust assets. If your mother still has capacity but acknowledges that her cognitive abilities are declining, she may be willing to resign as Trustee and appoint you to serve as Trustee now, thus avoiding the need to wait until she is incapacitated which would require you to find a doctor who will sign a certification to that effect.

Second, most powers of attorney allow the attorney-in-fact to manage non-trust assets when the principal can no longer do so. As noted in the answers to FAQs about bank accounts, however, beware of the difficulty in dealing with banks using a power of attorney other than the bank’s own form.

Third, most advance health care directives authorize an attorney-in-fact to make health care decisions for the principal who can no longer do so.

Notwithstanding the authority you may have under such estate plan documents, remember that each of those documents is revocable and does not limit the actions your mother can take, whether or not those actions are in her best interest. Sometimes, as a result of an illness or the undue influence of another, a parent may sabotage your efforts to help him or her. In such cases, it may be necessary to legally deprive the parent of control which can only be done by the court.