Guardianships and Conservatorships

Introduction

Ideally, a person’s estate plan includes legal tools incase of that person’s disability. A medical or healthcare power of attorney is used for medical decisions to be made for a disabled patient, or a financial power of attorney or living trust are used to handle financial matters. Sometimes they don’t work. Common reasons for those plans to fail are: the document is too old and no longer current with the law, the person modified the document such that it can’t be relied on, the person named in the document is not available or unwilling to participate, or the disabled person himself is asserting himself or disputes the need for the document. These are all instances that we’ve dealt with in the past year.

Guardianship and conservatorship

When the legal tool fails, we need to engage with the probate court system through a Guardianship and/or a Conservatorship. Much like after a death, the main goal of this proceeding is to put the right person in charge, supervise that person’s effort to manage the affairs of the disabled person, and provide a venue to resolve disputes. Typically, a person desiring the job will petition the state in the county where the disabled person lives, pay the necessary fees, provide the necessary paperwork, provide a background and credit check, and make her case at a hearing before a judge. The hearing cannot be avoided.

Because of the state’s desire to ensure that the right person is doing this job, there is a requirement to at least give anyone potentially interested in doing this job the chance to be involved. This implies that it’s difficult to rush through this process, so the totality of the process often takes several weeks at best to get through, and there are annual filing requirements. Sometimes special circumstances arise, such as when a disabled person receives an inheritance, when the court needs to get involved again. It’s an ongoing process.

It is often the case that a layperson called a Court Visitor will get involved to provide an impartial assessment of the situation to the judge, and assist the judge in evaluating the need for the proceeding and the appropriateness of the person seeking the job. Sometimes the judge will even require the disabled person be given her own attorney. We can help you determine what type of proceeding this might involve in your particular case.

To clarify the terms, the person appointed to make medical and personal decisions for a disabled person is the Guardianship. The person appointed to manage the finances is the Conservator. A limited amount of financial management can be handled in a Guardianship, but often a disabled person needs both a Guardian and a Conservator. The proceedings cannot be exactly merged, though they often happen at a similar pace.

who can be a guardian or conservator

A Guardian or Conservator need not be a professional, an attorney, or have any kind of particular medical or financial expertise. He is a fiduciary and must behave carefully and according to the highest standard of conduct. So, who can do this job?

In those cases where a person has become disabled but there are no family or loved ones to seek the position, each county has a public official tasked with taking on Guardianship or Conservatorship duties. Even professionals can seek the appointment. (There is a type of professional fiduciary out in the community who can be called upon to do these jobs. They are also ideal candidates to name in wills, trusts, and power of attorney documents when there are no suitable candidates in the circle of family and loved ones.)

Among family members, there is an order of preference based on the closeness of the relationship which should not be surprising. A spouse has priority over a child, a parent over a sibling, etc. Competing family members of the same category will need to come to an agreement or make their case before the judge.

When legal plans are in place, that gives a weight of preference to those persons named in the plans. Quality documents will include some affirmation that a person named as an executor in a will also has a nomination to serve as conservator if needed, for example. These are little things that are often overlooked in do-it-yourself type document services.