guardianship and conservatorship, elder law, estate planningI have written previously in this Blog regarding the use of Medical Power of Attorneys and Financial Power of Attorneys. One of the benefits of the Health and Financial Powers is that in many cases they can be used to avoid setting up a formal Guardianship and Conservatorship with the Court.

The Guardian makes medical and social decisions for the Ward and also decides on where the Ward will reside. The Conservator handles the Ward’s property and finances. Either an individual or a bank may act as a Guardian or Conservator. Guardians and Conservators are required to file annual reports with the Court which will be reviewed and approved by a judge. The Guardianship and Conservatorship can be established either voluntarily or involuntarily. In a voluntary proceeding, a competent person files a petition to have the Guardian or Conservator appointed to handle his or her affairs. A judge will review the filing and will examine the individual to make sure the individual is competent and understands the powers of the Guardian and Conservator.

An involuntary proceeding is filed by a person other than the Ward. After the petition is filed, the court will appoint another attorney to represent the interests of the proposed Ward. The petition is required to be personally served on the Ward and the proposed Ward will have a court appointed attorney who will file an answer to the petition and attend the hearing on whether a Guardian or Conservator will be appointed. The judge is required to determine if a Limited Guardianship or Limited Conservatorship is appropriate. Under a Limited Guardianship or Limited Conservatorship, the proposed Ward will retain some rights which will be set out by the Court with the remaining rights being taken over by the Guardian and Conservator.

The Guardian has general power to make decisions for the Ward. However, the Guardian cannot change the Ward’s permanent residence to a more restricted environment without court approval. Also, court approval is required for decisions regarding major elective surgeries and other non-emergency major medical procedures. The Conservator has general power to collect and save the Ward’s assets and to dispose of the Ward’s personal property at a fair price. Court approval must be obtained for the sale of real estate, settling of claims, executing leases or making disbursements.

Once a Guardianship and Conservatorship has been set up, it will continue until the Ward dies or until the Ward petitions the Court to have the Guardianship and/or Conservatorship amended or terminated.

By James D. Beatty