Because of the difference in the legal obligations and duties between being a conservator and a health An important aspect of the estate planning work we do for clients is to take steps to manage potential health-related issues. We do that in part by making sure that our clients’ plans include the right type of documents to ensure that there will be adequate and appropriate oversight over our clients’ personal well-being if they ever become incapacitated or suffer from diminished physical capacity. The type of planning we do means that adequate oversight will already be in place without a need to incur the delays and expense of probate court.
We do that by naming a health care representative who can make health-care related decisions when one is no longer able to do so for oneself. However, in situations where someone has done inadequate planning, the family to may need to go to probate court for a conservator to be named to look after the personal needs of the family member. Although there are some differences between a court-appointed conservator and a health care representative you appoint yourself, they share the same responsibility to make health care decisions on another’s behalf.
So, if someone is tasked with making health-care decisions for a family member as a health care representative or as a conservator of the person, do you understand what that job entails? It might seem obvious, but there are some fine points that may not be immediately apparent.
For example, suppose that you are a daughter who has been named conservator for your mother. She lives at home and in your opinion she has been growing increasingly frail in recent months. You have a growing concern that she may be at risk of a fall at home and based on some research you have done, you reasonably believe that that fall risk would be mitigated if she were to move into an assisted living facility. Since you are her conservator, the decision for her to move or not is ultimately your decision to make on her behalf. So, what should you do?
Traditionally, elder law practitioners would agree that the primary standard of operation for conservators would be use the conservator’s own best judgment to protect the best interest of the conserved person. Much like an insurance company might calculate risks on a simply statistical basis, if institutionalized care for mom would be statistically safer, then under traditional standards the conservator should simply decide that mom needs to be moved.
However, there has been a change in legal thinking in recent years that complicates a conservator’s decision-making process in the type of scenario we described. If you picture the type of conversation you might have with your mother, you might expect some pushback from her. We all value our independence and seniors are often reluctant to move away from the home they have lived in contentedly for years. It is not uncommon for seniors to believe that they are healthy enough to continue living on their own long after other family members think otherwise. Mom might observe that since she never had a fall before, there is nothing to worry about, concluding that her daughter’s safety concerns are not warranted and that the risk of a fall is overblown.
What has become more common lately is a belief that the appropriate decision-making process for conservators to use is “substituted judgment.” That term is inaptly named since it does not mean a conservator should substitute their own personal judgment. Rather, it means just the opposite. A conservator should try to determine what the ward would want for him or herself, and the conservator should substitute that preference over their own.
To expand our hypothetical above, an earnest discussion with mom about the suitability of staying in the home versus moving into an assisted living facility might include considerations of the layout of the home, mom’s physical limitations, thoughts on whether those limitations are permanent or temporary, and of course some judgment on the true likelihood of a fall. Would mom be convinced that she should move into an assisted living setting after an extensive conversation with her daughter? We can only speculate.
Does the shift in legal thinking make things more complicated for conservators who are striving to do the right thing? Of course it does! If the decision was up to mom and mom simply does not want to move, then under the new standards the conservator ought to follow mom’s preference. Yet if the conservator follows the more traditional standards and objectively concludes that it is safer for mom to move to an assisted living setting, then the daughter should make the decision for mom accordingly.
Unfortunately, we also live in a litigious society, and it is far too easy to envision scenarios where a conservator might be subject to liability. For instance:
The conservator permits mom to stay at home because she knows that is what mom would want.
Then mom does have a bad fall at home and incurs serious and debilitating injury.
Could the conservator be liable for what a litigator might argue was negligence on the part of the conservator in not pursuing the safest course
of action for mom? Perhaps.
Because of the difference in the legal obligations and duties between being a conservator and a health care representative, as far as being subjected to personal litigation it is probably safer to be a health care representative. Additionally, a health care representative usually can act more quickly to help. This is because the probate court must appoint a conservator before they can act on another’s behalf. In general the probate court will need to determine that the conserved person is not competent to make their own decisions before allowing someone else to make those decisions for the person.
We do not have any firm answers on these questions except to observe that it is not an easy job to serve as a conservator, or in any other role where someone must act as a substitute decision-maker, and those jobs are not likely to get any easier in the foreseeable future.
Please call us at 860-769-6938 if you have any questions about the issues presented above or if you care to discuss any other planning issues with us.