Competency and conservatorships in New York

Most people plan on being able to manage their affairs, but sometimes unforeseen circumstances arise and people are no longer able to reasonably make important decisions about their best interests. Sometimes it is the result of a mental illness, other times it may just be the result of aging, but how should these situations be legally handled?

For those who believe that their parents may no longer be able to make competent decisions regarding their well being, there are legal options. One possible option is conservatorship. While it may not always be the most ideal choice, it can be an appropriate one in some situations.

What is conservatorship?

If a parent has been declared incompetent, an individual can be legally given the authority to make financial and/or health care decisions on the parent's behalf. A person can be given authority over financial decisions alone ("conservator of the estate"), health care decisions ("conservator of the person") or both. However, conservatorships are not without their advantages and disadvantages.

Advantages

  • Legal representation

A conservatorship can give incompetent individuals a legal representative who can legally make decisions on their behalf. This allows a conservator to manage an incompetent individual's finances and medical issues.

It should also be noted that a person does not have to be given authority over both financial and health care decisions. Individuals often have a different conservator for each aspect of their care.

Disadvantages

  • Legal procedures

Establishing and maintaining a conservatorship is not easy. It takes a significant amount of time, effort and expense. Once a conservatorship has been established, the conservator is subject to supervision by the court to ensure they are not abusing their power.

Additionally, records and paperwork regarding any decisions made on the behalf of another individual must be regularly filed to the court. Conservators are often required to obtain permission before making any large decisions about the health and/finances of the individual they represent (selling real-estate, terminating of life-support, etc.).

Alternatives

Arguably the best alternative to a conservatorship is for a person to draft a living will and to designate individuals of their choosing with powers of attorney. This allows people to choose representative they trust before they are unable to do so. It is important to know that these types of legal arrangements can only be made before a person is declared incompetent.

Because of the factors involved, these issues can become very complicated very quickly. For people who are facing situations like these, it is highly recommended that they seek out the services of an experienced and knowledgeable legal professional.

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