All adults are considered competent to have the ability to make their own decisions about their money, property and financial matters. Too often we assume an adult lacks the ability to make decisions based on a medical diagnosis, a health condition or perhaps an unconscious bias. Having the ability to make your own financial decisions and manage your money and property can avoid a conservatorship, and is an important personal right to fully consider.

Explore the following:

• Is the adult unable to manage their money, property and business affairs effectively because of a clinically diagnosed impairment in the ability to receive and evaluate information or make or communicate decisions, even with appropriate technological assistance, and, 1). the adult has property that will be wasted or dissipated unless management is provided,  or  2). money is needed for the support, care, and welfare of the person or those entitled to the person’s support and that protection is necessary or desirable to obtain or provide money?
  • If NO, the person is considered to have the ability to make financial decisions and manage their money, property and business affairs.
  • If the person has the ability to make their own decisions with the help of a supportive person, consider a Supported Decision-Making model.
    • Supported Decision-Making empowers adults, with a range of abilities, to make decisions about their life, health and financial decisions with the help of one or more support persons. The adult chooses supporters who can offer advice and assistance. Supported Decision-Making can avoid the need for conservatorship. Read more here.

• •  If YES, a conservatorship may be appropriate after fully considering less restrictive alternatives and support.

A Durable Power of Attorney is a legal document in which you appoint a person you trust, called an "Attorney-in-fact", to manage your money, property and financial matters if you become disabled or incapacitated and are unable to effectively manage your financial matters yourself.

This legal document specifies the "powers" or authority you give to a trusted person to manage your financial matters. “Durable” means the document is valid if the person becomes incapacitated. A Durable Power of Attorney can avoid the need for a conservatorship. Also explore other planning documents to understand and honor an adult's goals and choices, and perhaps avoid or limit a conservatorship.

Explore the following:

• Does the adult have a valid Durable Power of Attorney?
  • Can you locate the document? What powers were given to the "attorney in fact"?
    • To locate, ask family, friends, attorneys, primary care physicians, the local hospital and facility where the adult last resided or was treated if they have a copy.
  • If no document, assess if the adult can complete a Durable Power of Attorney now.
    • Download a Durable Power of Attorney fact sheet here.

Explore other planning documents:

• Does the adult have a valid Health Care Proxy? If not, can the adult complete one now?
  • Download a free Health Care Proxy available in 15 languages here.

• Can the adult complete a Personal Directive (Living Will) to document their care choices and preferences?

• • A Personal Directive (Living Will) is a personal document where you write down what's important to you, and give your Health Care Agent, family and care providers information about the kind of care you want and do not want.
  • If an adult is unable to complete a Health Care Proxy due to a lack of ability, or cultural traditions present a conflict, or does not have a person to choose as their Agent, it is especially important to consider completing a Personal Directive to understand and honor an adult's personal and health care choices.
  • Most adults with a range of decision making abilities can use the Personal Directive to document their likes and dislikes and give instructions on how they want to be cared for today and for future care.
    • Download a free Personal Directive(Living Will) available  in 5 languages.

• Did the adult complete a Medical Orders for Life-Sustaining Treatment (MOLST), or a Comfort Care/Do Not Resuscitate Order(CC/DNR)?
  • These documents are designed for adults with serious illness and can be very instructive to understand and honor an adult’s medical and financial goals, priorities and choices.
    • Download fact sheets on the Resource webpage.

Everyone is different. Our ability to understand and make decisions to manage our money, property and financial matters can change overtime. It’s important to regularly assess an adult’s current decision making ability regarding financial matters to protect their estate, and importantly ensure the adult's health care and personal services can be contracted and paid for. Taking a holistic approach can help safeguard an adult’s autonomy and tailor interventions and supports to avoid or modify a conservatorship.

Assess the following:

• What decision making abilities has the adult retained or kept?
  • A person may be able to make decisions is some areas but not in others.  Identify and safeguard retained abilities.
• Has the person regained some or all decision making powers?
  • A person’s ability to make decisions can be lost and then regained. You can request a medical assessment at any time to access decisions making and management capability.
    • If regained, can the adult complete a  Durable Power of Attorney and other planning documents?
  • If the adult is under conservatorship, it is the role of the conservator to advocate for the adult's re-gained abilities and support their goals and priorities
• What’s the adult's current psycho-social abilities and need for appropriate supports and accommodations?
  • Consider a holistic assessment. A care manager or aging life care advocate can help assess an adults goals, abilities and priorities and tailor appropriate interventions and supports.
  • If the adult is under conservatorship, the conservator can consider petitioning the court to allow payment to bring in a professional care manager or aging life care advocate.

Here’s a sample list of rights that can be retained to limit a conservatorship.

Always assess the adult's current abilities and consider what alternatives and supports make be right for the adult. Here are just some of possible  alternatives and supports to consider that can help avoid or modify a conservatorship.

• Representative Payee for Social Security and SSI Benefits.
  • A representative payee is person who can receive Security Disability Insurance (SSDI) or Supplemental Security Income (SSI) for another person who is not capable of managing their own benefits. Read more about the Social Security's Representative Payment Program here.
  • Read more about the role and appointment of a Representative Payee, from the Mental Health Legal Advisors Committee, here.
• Joint Bank Accounts and ABLE Savings Plan.
  • A joint bank account is a shared account between two people. Either person named on the account has equal access to the bank account and can deposit or withdraw funds or use a joint checking account to manage shared bills, and pay for needed care and services. Two typical joint accounts are survivorship accounts and convenience accounts which your local bank can help you set up. Please note that a joint account may have  implications for collecting Supplemental Security Income SSI benefits- read more here to see if this applies to you. 
  • ABLE savings accounts can be set up for the health care and personal expenses of persons with disabilities, without interfering with their access to other benefits. Read more here
• Trust
  • A trust is a legal arrangement through which a person or an organization, called the trustee, holds assets for another person, called the beneficiary, according to the terms written into the trust document. There are several kinds of trusts, including a Special or Supplemental Needs trust for individuals receiving disability and other benefits. Creating a trust and trust law can be complicated; it is commonly recommended the trust be created by an experienced attorney. Read more about MA Law and Trusts here.
• Supported Decision–Making Model
  • When first assessing an adult's decisions-making ability, and at ANYTIME during this process, evaluate if a Supported Decision-Making model is right for the adult as an alternative to conservatorship. Supported decision-making allows an adult to make decisions about their own life with the help of one or more support persons, called supporters.  The adult chooses their supporters who can offer advice, help adults understand their options and communicate the adult's preferences to others, and assist with financial matters, needed health care, living arrangements ,etc.
    • Read more here.
    • Download a fact sheet here.

Learn more about Alternatives to Conservatorship in Massachusetts, from the Mental Health Legal Advisors Committee, here.

If a conservatorship is needed, first assess which type of conservatorship will best address the circumstance, maximize an individual’s autonomy and provide needed supports.

Explore the types of conservatorship. Here's a brief summary:

• Limited Conservatorship
  • In a Limited Conservatorship, the court can appoint a conservator with limited, specific powers only where necessary to protect a person’s assets and property. The adult retains the right to make financial decisions and manage financial matters is all other areas.
• Temporary Conservatorship
  • In a Temporary Conservatorship, the court can authorize a conservatorship for up to 90 days and grant the conservator limited authority to address an imminent harm or emergency situation.
• Plenary or Full Conservatorship
  • In a Plenary Conservatorship, the court authorizes the conservator to control most or all of the protected person’s assets and property, preserving any rights for the individual where possible.
• Special Conservatorship
  • This is a protective arrangement, where the court can authorize a single transaction or narrowly tailored arrangement to protect the individual’s assets or property, where appointing a conservator is not necessary.

Read more here