A close relative is suffering from dementia. How can I ensure their estate is protected?
If a person has truly lost mental competence and is unable to exercise rational control over his or her person or property, the courts may appoint a conservator (sometimes called a guardianship) over the person and/or of the estate after a conservatorship proceeding in court.
Just showing that someone is acting a bit eccentric or is absent minded and forgetful is not likely to be sufficient to justify the appointment of a conservator. The courts are likely to respect a person’s wishes to control his or her own affairs unless convinced that the person really needs to be protected from him or herself. For example, if your relative is unable to care for him or herself and is in danger through self-neglect, then a conservatorship might be appropriate.
On the other hand, if your relative is just behaving in a way you find strange or that makes you feel uncomfortable, but is able to care adequately for him or herself, a conservatorship would probably not be appropriate.
Before a conservatorship order can be made, a very careful determination of mental capacity must be made, and this typically involves at least one physician, often a psychiatrist, and a lawyer familiar with elder law matters. The court may also appoint someone to meet with and talk to your relative to find out what he or she wants. If your relative does not want someone else to control his or her person or financial affairs, they can oppose a conservatorship and force the matter to trial. In most states, if the person being threatened with a conservatorship or guardianship can’t afford an attorney, an attorney will be appointed to oppose the request or to ask for a different conservator.
Because conservatorship proceedings can be expensive and time consuming and invasive of your relative’s privacy, it’s best not to use that alternative unless you relative is seriously in danger.