Guardianships And Conservatorships

Guardianships and conservatorships function similarly to durable powers of attorney for health care and finances, but apply in different circumstances. For example, you may execute a durable power of attorney for health care (also known as a patient advocate designation) and choose someone to make your medical decisions on your behalf in case you become incapacitated. This must be completed before incapacity occurs. On the other hand, a guardianship takes place if you do not have a durable power of attorney for health care in place when you become incapacitated. Guardianship proceedings occur through the probate court, whereas durable powers of attorney are signed outside of court supervision.

Guardianships may also arise when someone seeks legal authority to care for a minor child if that child’s parents are unavailable. This is such an important part of estate planning because your estate planning documents can nominate someone you trust to make medical, placement, education, and other critical decisions on behalf of your minor child if you or your spouse is unable or unavailable to make them.

Guardians, Conservators, And Protected Individuals

Guardianship is the legal process whereby someone is appointed to be legally responsible for the care of another person (the protected individual) who is unable to manage his or her own affairs.

Conservatorship is the legal process whereby someone is appointed to be legally responsible for managing the protected individual’s finances due to that person’s inability to handle his or her own financial affairs.

A Guardian Has the Following Powers and Duties (as Granted by Court Order):

• Choosing where the protected individual will live, whether in this state or in another.
• Consenting to medical or other professional care, counsel, treatment, or services on behalf of the protected individual.
• Executing a do-not-resuscitate order.
• Taking reasonable care of the protected individual’s clothing, furniture, vehicles, and other personal effects, and initiating protective proceedings if the individual’s property requires safeguarding.
• Consulting directly with the protected individual’s attending physician regarding medical indications that may warrant reaffirming the do-not-resuscitate order.
• Signing a tax return on behalf of the protected individual.

Guardianship Process

Typically, an individual will petition the probate court to become guardian over the protected individual (also called the ward). This can be a lengthy and expensive process. Notice of the petition must be given to interested persons. Interested persons may include:

• The protected individual,
• The individual’s spouse and adult children,
• If no living spouse, child, or parent, the nearest relatives, and
• If no known relatives, the state Attorney General.

A hearing will then take place, where the court will appoint a guardian for the protected individual. After an appointment, a guardian is required to file ongoing reports with the court regarding the protected individual’s condition and any changes in circumstances.

Conservatorship

Conservatorship is the legal process granting an individual the authority to make important financial decisions on behalf of the protected individual, including:

• Collecting money owed to the protected individual.
• Using income and assets to pay for present needs, including taxes.
• Applying for benefit programs for which the protected individual may be eligible.
• Selling real estate.
• Investing assets to provide for possible future needs.
• Petitioning the court to sell other assets on behalf of the protected individual.
• Filing lawsuits on behalf of the protected individual.

Like a guardian, a conservator has a duty to report the protected individual’s financial status to the court on an ongoing basis.

Limited Guardians And Conservators

Keep in mind that there are also instances where a limited guardian or a limited conservator can be appointed by the court instead of a full guardian or conservator. By law, the probate court must tailor each guardianship or conservatorship to the specific needs of the protected individual. It cannot grant a guardian or conservator authority over areas where the protected individual can still make informed decisions.