Conservatorships and Dementia

You've likely heard of the term "conservatorship," maybe from the Britney Spears scandal that started in the late 2000s when she was placed in an involuntary conservatorship. Over a decade later, fans took to social media and started advocating for Spears' freedom and the conservatorship was eventually terminated after a long legal battle.

Needless to say, conservatorship has a pretty bad rap. But for people living with dementia, it can serve a very helpful and necessary purpose. Caregivers can benefit from at least a basic understanding of it.

Let's start with a definition

There are a lot of legal terms that might be useful to someone living with dementia. Conservatorship, or guardianship, as it is sometimes called with dementia care, is a legal process used when a person can no longer make safe or sound decisions about their person and/or property or has become susceptible to fraud or undue influence.¹

Britney's case involved periods of her life where her mental health suffered, and people worried about her being able to handle her gobs of money. For those living with dementia, there is a time when they will no longer be able to make certain financial or care decisions and it can be wise to invoke a guardianship in those situations.

A guardian can be any person, including a person the court appoints, and guardians are supervised by the court. They are responsible for making decisions on healthcare, finances, and also everyday care for the person like food, shelter, safety.²

Who needs a guardianship?

Let's talk about a few examples that involve dementia. Say an elderly person living with dementia lives alone and has been targeted by phone calls asking for money. Cognitively healthy people can sift through complicated information and generally discern if a phone call might be dishonest, but someone with impaired judgment might not.

Or say a person is living with dementia that has progressed so far that they cannot drive, pay bills, read, or remember what medications to take. This person could make unsafe decisions about his or her health or property, and be susceptible to harm or situations that might jeopardize their house or other assets that are needed for future care.

Judges will assess capacity and competency

In both of those cases you could start noticing changes in capacity and competency, which are both things that a judge would consider in a guardianship case. Because a guardianship takes away so many rights from an individual, it's one that courts do not grant lightly.

If your loved one signs a guardianship nomination form before diagnosis or early on in the disease, it can hold greater weight in court. This is something an elder care law attorney could help with. They serve as a neutral third party and assess whether an individual signing a nomination is being unduly influenced, or if it truly is their preference.

Respect for a person's independence

The Britney Spears conservatorship was scandalous because of the rights purported to have been taken away from the singer. Spears testified in court that she was forced against her will to perform and take psychiatric medication, and also that her finances were mishandled by her conservator.

In all of these matters, the challenge is finding a balance between respecting a person's independence and protecting their body and property. A person living with dementia has the right to make decisions for themselves as long as possible.

There are good reasons to enact a guardianship for someone with a dementia diagnosis and also opportunities for someone to take advantage of someone living with the disease. The guardian system can be difficult to navigate for dementia caregivers, but the legal safeguards are rightly in place to protect a person's rights to liberty and independence.