Guardianships & Conservatorships
Guardianships and conservatorships are legal relationships established by the probate court, whereby an individual (the guardian or conservator) is given responsibility for making decisions for another person when impaired judgment or capacity poses a threat to that person’s welfare. As of July 1, 2009, the probate court began distinguishing between guardians and conservators. Today, guardians have authority over personal and medical decisions, while conservators have authority over an incapacitated person’s finances.
A medical evaluation by a licensed physician is necessary to establish the condition of an individual, however, only a probate court can determine the need for a guardian or conservator. A guardian or conservator may be appointed when a court determines that an individual is incapacitated to such degree that they are unable to care for himself or herself or his/her assets.
How can I become a guardian or conservator?
Once a physician is prepared to attest to an individual’s capacity, a petition must be filed with the probate court requesting the appointment of a guardian or conservator. Two individuals must sign the petition and the proposed guardian must file a bond with the court. Notice of these legal proceedings must be given to the incapacitated persons, his or her heirs, anyone he or she lives with, and his or her agents under a durable power of attorney or health care proxy. The court sets a date by which anyone wishing to object may do so, including the individual being evaluated, and a hearing is held where a judge decides if a guardian or conservator should be appointed. The court can name one individual to serve as both guardian and conservator, or different people to serve in each role. Temporary appointments last 90 days, while permanent appointments can last until the death of either the incapacitated person or the guardian, until the individual is able to establish that he or she is competent, or until the guardian or conservator resigns or is removed by the probate court.
In some situations, a family is not available or able to serve as a guardian or conservator. Pabian & Russell attorneys are available to serve in these roles when necessary. We have the experience and resources to make sure that your loved one is well cared for, and to protect their assets. As guardian and conservator, we’ll assess the individual’s care, needs, and the services they require. We create systems for bill paying, oversee investments, and provide peace of mind by overseeing their care plan and finances.
What authority and responsibilities do guardians and conservators have?
Unless limited by the court, the guardian has total control over the incapacitated person’s medical decisions, and the conservator has authority over all financial decisions. This includes routine medical decisions, decisions regarding where he or she will live, and how his or her funds will be spent. The guardian is required to obtain court approval in separate proceedings for decisions involving extraordinary medical care, nursing home admission, the administration of antipsychotic drugs, commitment to a mental health facility, or the sale of real estate. Similarly, a conservator must seek court authority to make any gifts from the incapacitated person’s estate, or to implement an estate plan.
Guardians are also required to report back to the court regarding the individual’s care and living situation, and conservators must carefully account for all of the individual’s income and expenditures. The conservator must file an inventory listing all of assets with the court as of the date of appointment, and submit annual filings detailing all income and expenses made on the individual’s behalf. A final account must also be filed when the conservatorship is terminated. Guardians and conservators are liable for their actions until the court approves their decisions and the account.
Are there alternatives to guardianship or conservatorship?
Pabian & Russell helps clients avoid the need for court involvement whenever possible. Our job is to anticipate and properly plan for our clients’ future needs. There are several alternatives available to guardianship or conservatorship, including durable powers of attorney, representative payees, health care proxies, and trusts. Each of these options may avoid or delay the need for a guardian, however, these documents must be executed before the individual is incapable of doing so due to cognitive impairment. If your family member does need a guardianship or conservatorship, Pabian & Russell will work with you to make sure that the appointment is closely tailored to your family member’s needs. We understand that it is important to recognize a family member’s abilities and independence to the greatest extent possible.