Guardianship or Conservatorship

When a court determines that someone lacks capacity to manage their finances or their healthcare, the court can appoint a guardian or conservator to make decisions and act on that person’s behalf. A guardian could be an individual such as a family member or an entity. The person subject to guardianship, sometimes referred to as a ward, is often an elderly person, but could also be a minor or someone with special needs that interfere with their ability to manage their own affairs.

Guardians have a duty to manage the ward’s affairs to the best of their ability, and they are supposed to allow the ward to participate in the process of making decisions that affect them insofar as their capacity allows.

Although conservatorship proceedings can often be avoided with a thorough estate plan, it becomes necessary to initiate the conservatorship process when a family member has lost the ability to manage affairs and has not executed appropriate financial or healthcare power of attorney documents. Our attorneys can help you prepare documents to preemptively appoint a conservator or guardian, reducing time in court and allowing you to decide who will stand up for you when you or your children no longer can.

The role of guardianship can extend to the following:

Guardianship of a Person. The guardian of a person is appointed to make decisions related to medical and physical care, custody, and control of an incapacitated person. The guardian has no authority over the financial or legal matters of the ward.

Guardianship of Property. The guardian over property has all the financial powers and authorities of the ward. This position is comparable to having an unlimited financial power of attorney from the ward.

General Guardianship. A general guardian will serve as a caretaker of both the person and their estate.

When a person does not have proper estate planning documents in place, the process of being adjudicated incompetent and having a guardian appointed can be stressful and costly. Such a case is likely to enter guardianship litigation or contested guardianship, which must be settled in the courtroom. Without a qualified guardianship and estate planning attorney, these issues are complex and can take months—and thousands of dollars—to resolve.

In fact, guardianship can be such an intricate area of practice that many families feel overwhelmed with questions. Some of the most common questions that we receive about guardianship include:

Why would a court appoint a conservator for an adult?

A conservator is appointed for an adult if the court finds clear evidence that a person is incompetent or is incapable of managing his or her affairs or making decisions about self, family, or property. An individual’s lack of capacity can be due to many reasons, including but not limited to mental or physical illness, injury, development disability, and senility.

What is the role of a conservator or guardian?

A guardian serves as both the decision-maker and advocate for the person judged incapacitated. Even though a court may find an individual unable to manage his or her affairs or make decisions, a guardian should not only encourage the individual’s participation in the decision process but also allow the individual to make his or her own choices as much as possible.

What is the difference between a Power of Attorney and guardianship?

A power of attorney (POA) is a document an individual has prepared in advance that stipulates who will assist in decision making and managing affairs. With a POA, the individual delegates that authority without a court proceeding. Depending on the needs or situation, a person could have different types of POAs created with varying levels of controls.

With guardianship, a court decides who will be responsible for making decisions, managing affairs or property.

What are the steps to get legal guardianship?

Typically, guardianship requires that a petition be filed in court. If the process requires a petition for adjudication of incompetence, the proposed ward will need to be served, and the court-appointed guardian ad litem must be notified, along with the next of kin. Then the court will hold a hearing to make a determination.

Guardianship is not necessarily permanent, and some situations may call for only temporary guardianship. The smoothest cases tend to involve those in which relatives or close family are willing to become the guardian. However, blood relation is not required.

How long does a guardianship proceeding take?

The time frame of a guardianship petition and its associated processes can vary based upon the details of the case. However, in general, you can expect to spend a couple of months working through the guardianship process. Once you have filed a guardianship petition, the court will set a hearing date. Cases can resolve quickly if the entire guardianship issue can be determined in this first hearing, when the court will confirm or deny the guardianship. However, the court has the right to request additional information; in this case, another hearing will be set in which the judge will hear from witnesses and other concerned parties. This can extend the guardianship proceeding.

How can I avoid guardianship proceedings?

A properly prepared estate plan includes powers of attorney for both your person and property. Rather than adding stress and expense to your life and those of your loved ones, it allows you to appoint a trusted individual to manage your affairs whenever needed. Contact our office today to set up a consultation with our attorneys, so you can have peace of mind tomorrow.