Guardianship and Conservatorship
What is a Guardianship?
A guardianship is a legal proceeding in which a guardian is appointed to exercise the legal rights of an incapacitated person. A guardian can be an individual or an institution such as a bank trust department appointed by the court to care for an incapacitated person-called a “ward”-or for the ward’s assets.
How Is A Person Determined To Be Incapacitated?
Any adult may file a court petition to determine another person’s incapacity. The document must include a certification setting forth the factual information upon which they base their belief that the person is incapacitated. The court will then appoint a committee of two professionals, usually physicians, and a lay person to examine the person and report its findings to the court. The court also appoints an attorney to represent the person alleged to be incapacitated. If the examining committee concludes that the alleged incapacitated person is not incapacitated in any way, the court will dismiss the petition. If the examining committee finds the person to be incapable of exercising certain rights, the court schedules a hearing to determine whether the person is totally or partially incapacitated. If necessary, a guardian will be appointed at the end of the incapacity hearing.
Who May Serve As Guardian?
Any competent adult can serve as a guardian. However, people who have been convicted of a felony or who are incapable of carrying out the duties of a guardian usually cannot be appointed. Often, a bank’s trust department, a nonprofit religious or charitable corporation, or a public guardian, can be appointed as a guardian, but a bank trust department may only act as guardian of the property, not on the medical issues. The court gives consideration to the wishes expressed by the incapacitated person in a written declaration of preneed guardian or at the hearing. In these situations, the significance of the living will becomes all to obvious. Everyone needs a living will.
What Does A Guardian Do?
A guardian is given authority over any of the incapacitated person’s property. First they take an inventory of the property. They will invest it and use the proceeds for the incapacitated persons support. The Guardian must account for the inventory and any proceeds by filing detailed annual reports with the court. In addition, the guardian must obtain court approval for certain financial transactions.
The guardian of the ward’s person may exercise those rights that have been removed from the ward and delegated to the guardian, such as providing medical, mental and personal care services and determining the place and kind of residential setting best suited for the ward. The guardian of the person must also present to the court every year a detailed plan for the ward’s care.
Whether you are facing long-term care issues yourself or you have a family member who is, we encourage you to contact an attorney today. Be sure to call sooner rather than later because the timing of the decisions families need to make has a dramatic impact on whether or not someone can actually qualify for this type of support.
If a person becomes unable to handle their every day financial or medical affairs, the courts have a process whereby someone else can be appointed to help the incapacitated person in making important financial and life decisions. If the incapacitated person planned ahead and signed durable powers of attorney for finances and health care, the person named in those documents can become the conservator and/or guardian. Conservatorship describes the relationship between a person who’s unable to make legally binding decisions and another person who’s been appointed to manage the first person’s affairs. The appointed person is called the conservator. Typically, people who had the foresight to hire an attorney for their Estate Planning needs, have this contingency plans in place so that when the event of incapacity takes place, there is a flawless transition to conservatorship.
Unfortunately, not everyone plans ahead, or is so removed from the possibility that they may become incapacitated that the issue never arose before. When incapacitation happens, usually family members ask a court to appoint a family member as conservator or guardian. If no family is available or willing to take on the responsibility, than the court will appoint someone else. This person will have the court-ordered authority and responsibility to manage the incapacitated person’s affairs. Conservatorships are common among the elderly or people who are ill.
Conservators are subject to court supervision, which provides some level of protective oversight for an incapacitated adult’s property. Unfortunately, the court hearings are time consuming, costly and require many financial filings. They are also public information, which allows other to see certain information about the incapacitated person’s finances. To prevent conservators from mismanaging the property or otherwise taking advantage of the people they are helping, most courts require conservators to provide periodic reports detailing their actions. Many courts also require the conservator to seek permission before making major decisions, such as selling real estate (for a financial conservator) or terminating life-support (for a conservator (guardian) in charge of health care decisions). Some conservators are required to post a bond to secure the faithful performance of their duties.
The courts appointment of a conservator is only to manage a person’s finances. The conservator has no authority to make personal decisions about where the person lives or whom the person may associate with. A conservatorship is granted for some of the same reasons as a guardianship. Some people may be able to handle minimal amounts of money on a daily basis, but can’t manage larger scale finances.
If someone close to you is unable to care for them self or their property, an experienced lawyer can help you establish a conservatorship, and ensure that the individual and their property is cared for competently. Additionally, if someone is improperly seeking to become conservator over you or someone close to you, an attorney can help you file papers to challenge the conservatorship proceeding.