Guardianships and Conservatorships
Guardianships and conservatorships function similarly to durable powers of attorney for health care and finances but take effect at different times. For example, you would enter into a durable power of attorney for health care (also known as a patient advocate designation) and choose somebody to make your medical decisions on your behalf in case you become incapacitated (this is done before incapacity). 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 probate court whereas durable powers of attorney are signed outside of court supervision.Guardianships also occur when somebody is trying to get permission to take care of 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 somebody you trust to make medical, placement and other critical decisions on behalf of your minor child in case you or your spouse are 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 someone else (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 the management of someone else's (the protected individual) finances resulting from that person's inability to manage his or her own financial affairs.
A guardian has all of the following powers and duties over the protected individual, to the extent 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 service 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 commence a protective proceeding if the protected individual's other property needs protection.
Consult directly with the protected individual's attending physician as to specific medical indications that may warrant reaffirming the do-not-resuscitate order.
Authority to sign a tax return.
Typically, an individual will petition the probate court to become guardian over the protected individual/ward. This can be a lengthy and expensive process. Notice of this petition shall be given to interested persons. Interested persons can include: the 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 take place where the court will appoint a guardian for the protected individual/ward. After appointment, a guardian is required to file certain ongoing documents with the court pertaining to the protected individual's condition and changed circumstances.
Conservatorship is the legal process granting an individual the authority to make important financial decisions on behalf of the protected individual, including:
Power to collect money due the protected individual.
Power to use income and assets to pay for present needs, including taxes.
Power to apply for benefit programs for which the protected individual may be eligible.
Power to sell real estate.
Power to invest assets to pay for possible future needs.
Power to petition the court to sell other assets on behalf of the protected individual.
Filing lawsuits on behalf of the protected individual.
A conservator, like a guardian, has a duty to report to the court the protected individual's financial status on an ongoing basis.
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 a full conservator. By law, the probate court must tailor each guardianship/conservatorship to the needs of the protected individual, and cannot grant a guardian/conservator power over areas where the protected individual can still make informed decisions.