Beyond The Will, Client Compass

Guardianships and Conservatorships: Examining the Austen Family

February 18, 2021


To best enjoy this post, please be sure to first read A Family History of the Austens

Rogers Guardianship

For families like the Austens, guardianship can offer crucial tools to help protect, treat, and improve the quality of life for a loved one, like Claire, who is living with schizophrenia, bipolar disorder, or schizoaffective disorder, or related cognitive disorders. While the severity of Claire’s symptoms or their presentation is not detailed in the fact pattern, the existence of a diagnosis suggests that there is, or needs to be, ongoing treatment. Due to the nature of these disorders, treatment typically includes daily administration of antipsychotic medication combined with other therapies tailored to the individual’s needs that may be time-intensive or feel invasive; individuals like Claire will often resist treatment outright (to varying degrees) or find it extremely difficult to maintain treatment consistently, and these disruptions in treatment may trigger symptomatic episodes that can be dangerous to themselves or others.  

Individuals seeking guardianship in this context will need to obtain authority to make decisions regarding “extraordinary” treatment, including antipsychotic medication or other intrusive procedures such as electroconvulsive therapy. Guardianships seeking these authorities are colloquially known as “Rogers authority” or a “Rogers guardianship” and are similar to regular guardianships with a few extra considerations that are best navigated with competent counsel. For more information on guardianships, see Tiffany and Hether’s articles: “Guardianship and Conservatorship: Initial Filing and Emergency Orders,” “Guardianship and Conservatorship: Relationship with Health Care Proxy and Durable Power of Attorney,” and “Guardianship and Conservatorship: Standing, Notice, and Objections.” In Rogers proceedings, Claire would be entitled to notice, her own counsel, and have a right to be heard, as fundamental liberty protections. She may object or seek to impose limits on the Rogers guardian’s authority. If the Court concludes Claire is not competent to give informed consent to the treatment, but would if she were competent, it will make a “substituted judgment” finding and can grant the Rogers Guardianship. The Court would also need to review and approve the proposed treatment plan for Claire, which will delineate the treatments her proposed guardian could compel her to undertake. These should be drafted carefully and in consultation with care providers; a good treatment plan provides some flexibility with alternate treatments because a current regimen could cease being effective or create bad side effects over time and remain narrowly tailored to respect Claire’s liberty interests. The proposed treatment plan and Rogers guardianship will need to be reviewed annually. These are some, but not all, of the additional concerns arising in Rogers guardianships; during this process, Kate or Charlie would be wise to consult with counsel who handles Rogers guardianships. 

Conservatorship & Supplemental Needs Planning

Claire is also likely to be a strong candidate for conservatorship, given her diagnoses and potential ownership of a 1/3 interest in Oceanic Real Estate, LLC. However, depending on additional details not present in this fact pattern, including the relative severity of Claire’s schizophrenia and bipolar disorder, the effectiveness of her treatments (which varies significantly between individuals), her other assets, and the overall family situation, this may not be a case where a long-term conservator is necessary. If Claire retains her 1/3 interest in the company and a conservator is appointed, then the most prudent course may be for the conservator to seek estate planning authority and transfer Claire’s significant assets into a qualified supplemental needs trust. Such trusts exist specifically to hold assets and generate income for individuals with physical or mental disabilities while maintaining their eligibility for public benefits (like those Claire is currently receiving). This kind of planning is also a highly technical area, in which significant experience and expertise is necessary to ensure the federal requirements are met such that public benefits can continue. See Patricia’s post “Special Needs Planning.” Transfer of Claire’s assets to a trust would also allow the conservator to plan for long-term stability and reduced court involvement in Claire’s financial affairs. In complex cases like Claire’s, working with a multi-disciplinary team that combines guardianship/conservatorship and estate planning is often necessary to ensure the most complete, best outcomes are achieved.

Government Benefits and Representative Payees

Since Claire is receiving government benefits, presumably based on her mental health diagnosis, she may also need a representative payee; as with the conservatorship, the extent to which Claire needs assistance with her financial affairs will depend on facts beyond the scope of this hypothetical. However, some government agencies require the appointment of a representative payee for certain benefits. This is another area of Claire’s needs where good counsel will go a long way.

A representative payee is a person (sometimes an organization) designated to receive government benefits, i.e., Social Security benefits, for someone who is not capable of managing their own funds. The representative payee role is governed by federal regulations; it includes the authority to receive and spend the benefits paid on behalf of the recipient. Unlike guardianships/conservatorships, a representative payee is appointed by the benefit provider, i.e., the SSA. Where the recipient already has a guardian/conservator, that person is usually appointed as representative payee, although another individual may be appointed. Notably, this role is distinct from that of a guardian, trustee, or other fiduciary (although the same person may occupy both roles) because a representative payee can only handle Social Security funds, and no guardian/conservator may control them unless also appointed as representative payee. In Claire’s case, if there is a special needs trust established, it would be sensible to have the trustee(s) appointed as Claire’s representative payees – this would consolidate most or all of Claire’s financial supports into a single, efficient role.

Claire’s representative payee will be accountable to both her and the agency for the management and expenditure of the recipient’s funds. Representative payees must keep the recipient’s funds separate from their own and maintain records of income/expenses. Expenditures for the recipient’s benefit should prioritize basic necessities, i.e., food, clothing, and shelter. Similar to guardianship/conservatorship, representative payees are required to file annual reports as part of their appointment.

While Claire’s circumstances in this hypothetical raise a significant number of potential issues, they are not actually uncommon – individually or in combination. Nor do they necessarily require extensive, long-term legal entanglement. The appointment of Rogers counsel, a conservator, and effective estate/benefit planning may have significant up-front involvement with counsel, but once established, the mechanisms to provide for Claire’s personal and financial needs could transition into “maintenance mode” with care providers, family, and fiduciaries (professional or familial) working in concert. In such cases, families can limit further court involvement to annual reviews and reports, which may be allowed administratively.

receive news & alerts

Yes, I’d like to receive updates with firm news and insights that are relevant to me.