This came in from Susan Forbes, a lawyer with Forbes and Forbes here in El Paso. You can read about her here.
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Why Probate is a Medical Issue
There are many situations that lead to an elderly or very sick individual’s medical and financial decisions to be made by someone else. As much as the entire probate process involves court reviews, there are many ways in which probate requires, and relies upon, the assistance and expertise of medical professionals.
Many elderly people lose their ability to make important decisions for themselves. It’s extremely important loved ones recognize these situations and collaborate with medical professionals to initiate the probate process in order to establish a conservator.
What exactly is probate conservatorship?
A probate conservatorship entails a court proceeding that allows for a judge to select an individual (conservator) to manage the personal and/or financial needs of a legal adult who requires such care (conservatee).
Typically, this type of legal proceeding is required when an incapacitated individual has not set up their will or power of attorney documents properly, which is why it becomes the responsibility of the court to establish a responsible conservator in the conservatee’s time of need.
Types of Probate Conservatorships
There are three main types of probate conservatorships, including general, limited and Lanterman-Petris-Short (LPS) conservatorships.
A general conservatorship entails conservatees who are elderly, or younger people who were seriously injured, and cannot take care of themselves and their finances.
A limited conservatorship entails adult individuals with developmental disabilities who are not capable of fully taking care of their finances, and these conservatees typically don’t need the amount of care that is required for general conservatees.
Lanterman-Petris-Short (LPS) conservatorships help adults with serious mental illnesses that require things like restrictive living arrangements and regular treatment of behavior-controlling drugs.
Types of Probate Conservators
A probate court has the ability to appoint different types of conservators depending on the needs of the conservatee. The two main types of probate conservators include the following:
- A conservator of the person is who takes care of the conservatee once a judge declares that the conservatee cannot take care of themselves. This type of conservator is responsible for all different kinds of daily tasks including making sure the conservatee maintains a nutritious diet or has enough food, has clothing, health care and shelter. Many times, important medical decisions need to be made by this conservator as well.
- A conservator of the estate primarily focuses on handling the conservatee’s financial dealings including paying their bills on time and collecting the conservatee’s personal income IF a judge declares the conservatee is not capable of doing these tasks.
These two types of probate conservators are mutually exclusive, and so it’s important to understand that a person must petition for both types in order to be the conservator for a person and their estate. It’s also possible for a conservator of a person to later file a new petition to become a conservatee’s conservator of estate as well.
In order to fully understand exactly why the probate process can become a medical issue you must know the above fundamentals about probate conservatorships. Also knowing the alternatives to a conservatorship that a probate court will assess is essential because the following alternatives are what judges and court investigators will use to test the conservatee in order to decipher if a conservatorship is necessary or not.
An individual does not necessarily need a conservator if they can do the following:
- Cooperate with a plan to meet their most basic needs.
- Have the capacity to sign a power of attorney naming someone to help with his or her finances and health-care decisions.
- Have only welfare or social security income, and the Social Security Administration can appoint a proposed conservator to be the Representative Payee.
- Remain married or in a partnership in which the partner can make their financial decisions and handle transactions.
Role of Medical Professionals
Medical professionals play a major role in helping probate courts decide whether or not a conservatee does in fact need a conservator, and for what reasons. The above alternatives to conservatorships are part of what the court will utilize an investigator for, and investigators will talk to a proposed conservatee, if possible, and those who are familiar with the conservatee’s condition.
A proposed conservatee and their family members spend a lot of time with medical professionals. Personal doctors know much about a proposed conservatee’s living conditions, thus the medical professionals become an incredibly vital source to help the court investigator and judge gauge the need for an appointed conservator.
It’s crucial to find a healthcare professional that you know and trust fully. That is partly because registered physicians, licensed psychologists, and certified psychiatric nurses and nurse practitioners are the only medical professionals who specialize in authenticating a Medical Certificate of Conservatorship.
Filling Out the Certificate
When one of these medical professionals is filling out these certificates, they must thoroughly evaluate the proposed conservatee’s physical and mental condition by describing in detail the specific conditions that necessitate the appointment of a conservator. The medical professional will also indicate the date of the onset of these conditions and the course of the conditions.
The medical professional must also include a comprehensive list of the proposed conservatee’s medications with the dosage/schedule for each medication. They must also thoroughly explain if any of the listed medications has the potential to impair the proposed conservatee’s mental functioning.
A prognosis for improvement must also be stated, especially if there are any factors that could help explain whether or not a proposed conservatee’s functioning may improve in the future.
The next part of the medical examination process is when the medical professional will evaluate a proposed conservatee’s inability to make or communicate decisions, as well as receive and evaluate information. This includes evaluating the following:
- Level of consciousness/Alertness
- Cognitive and Memory Functioning
- Psychiatric and Emotional Functioning
The medical professional must then evaluate the areas of a proposed conservatee’s life in which the individual is able to manage their business and property affairs efficiently, which essentially describes the person’s retained abilities. The next section pertains to what the proposed conservatee is unable to do in terms of handling business affairs and managing their property, and this can include a description of the person’s impairments that require the need for a conservator. Also, if a medical professional believes the proposed conservatee cannot manage or make decisions about their business affairs and property they must explain in detail why that is the case.
Next the medical professional must evaluate how supportive the proposed conservatee’s social network is and whether or not there is a likelihood the proposed conservatee would risk the harm of themselves or others.
Lastly, the certificate procedure entails the medical professional’s recommendation for care and supervision of the proposed conservatee, which primarily deals with their housing and how much supervision they would require. They also recommend appropriate habilitations and treatments and decide whether or not the proposed conservatee should or should not attend the probate court hearing and why.
Medical professionals who complete a Medical Certificate of Conservatorship conduct a very thorough report, and this report then many times dictates exactly how a probate court hearing will go. A judge will always accept the information given in the certificate as the most objective and reliable source in terms of deciphering whether or not a conservatorship should be granted or not. The Medical Certificate of Conservatorship is highly regarded, thus it makes Probate Court an extremely medically-oriented legal arena that utilizes the expertise of medical professionals to make important decisions on allowing or refusing a probate conservatorship.