Guardianships and Conservatorships
We can assist you in the following areas (and more):
Guardianships are court proceedings in which a person is appointed by the Court authorizing the appointed person to have legal authority over the protected person including where the protected person resides and what medical care is authorized for them, as well as other authority.
Conservatorships are court proceedings in which a person is appointed by the Court to have legal authority over a protected person’s finances, and to make annual accountings to the Court for all income and expenditures. This is used in order to provide authority to the appointed person to pay the protected person’s bills and to invest the protected person’s funds, all solely for the protected person’s benefit.
Both a Guardian and a Conservator are fiduciaries, which mean that they have a special relationship and legal duty to make decisions that are best for the protected person.
Minor children may need a guardianship if their parents are deceased, or are otherwise unable or unwilling to parent their children. This may happen when the parents die unexpectedly in an accident or when the parent’s parenting abilities are severely compromised by drugs, alcohol, or mental disability. Generally a close family relative will apply to the Court to be the minor child’s guardian. Once appointed, the Guardian usually will have the minor children live with them and the Guardian will make decisions for the minor child for school enrollment, medical decisions, activity decisions, etc. A Guardianship will also allow the Guardian to place the child on the Guardians’ medical insurance policy, if needed.
Conservatorships over children are generally only necessary if either the parents of the children have died with an estate or there is a personal injury settlement because of some damage or injury to the child or to the child’s parents.
Guardianships over an adult may be necessary if the protected person has mental or physical disabilities that render them incapacitated to such an extent that they cannot make decisions as to their care, which jeopardizes their health, safety or welfare. A Guardian, once appointed, has the authority to marshal social service programs to benefit the Protected Person.
Guardianships over elderly persons are the most common guardianships. Guardianships over an elderly person may be necessary if the protected person becomes disabled due to dementia, stroke or some other medical condition so that they are no longer mentally or physically capable of making decisions regarding their living accommodations and medical decisions. Oftentimes, Guardianships become necessary due to HIPPA constraints for medical care. Once a Guardianship is established, medical professionals are free to consult with, and take direction from, the Guardian for the Protected Person.
Conservatorships over adult persons with mental of physical disabilities are usually only necessary if the person has assets or liabilities which need to be managed and the person is unable to do so. Conservatorships over elderly persons are common if the person has not already executed either a durable power of attorney or established a revocable living trust and they have funds which must be managed for their benefit, such as retirement accounts, a home or other investments. If the person is not competent to handle their finances for paying bills, investing their funds appropriately or “taking care of business”, a conservatorship will need to be established to give a person legal authority to make financial decisions and to have control over the protected person’s property. A Conservatorship can also be helpful in protecting the healthy spouse’s assets by splitting joint assets, without the need for a divorce. Conservatorships can also be used when there is significant dispute amongst the protected person’s children over any number of issues. Because a Conservatorship is a court proceeding, there are full annual accountings to the court for all income and expenditures made on behalf of the protected person, and a procedure to resolve disputes by the Court.