A guardian or conservator may be required at any point in a person’s life if they find themselves mentally or physically incapacitated. Incapacitation can be due to injury, illness, mental decline, or any other situation that causes a person to be unable to care for themself.
Children, regardless of their mental and physical state, are automatically assumed to be without the capacity to make decisions about their own finances and other aspects of their well-being. Adults, on the other hand, need to be officially classified as not having the capacity to make these decisions (usually due to an illness or injury) in order to require guardianship or conservatorship.
Without estate planning documents in place that officially name an individual designated to be your guardian or conservator, a probate judge will name someone to take this role in the instance of your mental or physical incapacity without any consideration for your wishes on the matter.
At Stafford Law Firm, we have the experience necessary to help you through the process of appointing a conservator or guardian through a probate court. Whether this is needed for yourself or a loved one, it can be a complicated and emotional process, and one you do not want to battle through on your own.
The process of obtaining guardianship or conservatorship for an adult is no small feat. Since the law presumes that anyone over the age of 18 has the capacity to make their own decisions about their financial and other well-being, proving otherwise will require extensive documentation.
The first step of the process is to file a petition requesting that the court declares that the adult is legally incapacitated and thus unable to act in their own best self-interest. In some situations, it may be necessary to hold these proceedings “ex parte” (in secret). The reason hearings may need to be in secret is if there is concern that another interested party has ill intentions, or if the incapacitated person may exhibit behavior harmful to themself or others.
It is not uncommon for conservatorship or guardianship filings to end in heated disputes between interested parties (such as family members or close friends). People will often each have their own ideas as to who is best suited for the role. It does not matter to the court who initially filed the adult guardian and conservator petition, they will only grant this role if there is sufficient evidence that the person is truly incapacitated and unable to make their own decisions about legal, financial, or healthcare matters.
While probate courts generally prefer to appoint a spouse or other family member as guardian or conservator, it is not required that this role goes to a relative. As long as the person looking to be appointed is a competent adult and has a relationship with the incapacitated individual, they have the ability to serve as guardian or conservator if the judge determines that they are the best person for the role. If no friend or relative is willing and able to serve, the court has the ability to appoint a third party as a guardian or conservator.
Unfortunately, financial and/or physical abuse is not uncommon with incapacitated adults. Naming a guardian and conservator in estate planning documents prior to illness or injury is the best way to make sure that your care will fall to the hands of someone you truly trust if you were to become incapacitated.
There are two primary areas where a guardian or conservator can be given decision-making authority: finances, and general well-being. Depending on the extent of a person’s incapacity, a guardian or conservator may be given authority over both of these areas, thus having extensive control over the incapacitated adult’s life.
Financial decisions that a guardian or conservator could have control over include paying your bills, allocating income and assets, filing insurance claims, and pursuing legal actions on your behalf. Well-being decisions will likely include choosing doctors, approving medical treatments, and determining a place of residence.
It is most common for the court to appoint one person to both of these roles, but it is also possible that they may split this up between two individuals. The court will often require a guardian or conservator to file status reports at regular intervals, or whenever a major decision is made (such as selling an asset or the requirement of substantial medical care).
The most common duties that adult guardians and conservators will face include:
Since guardianship and conservatorship come with a loss of control for one individual and a huge responsibility for the other, the process can seem overwhelming. The best thing you can do is to utilize your estate planning documents to name a preferred guardian and conservator before you become incapacitated.
We understand that this is not always possible, however, and many of our clients are now facing the prospect of helping their loved one establish an adult guardianship or conservatorship after an injury or illness has incapacitated them.
No matter where you are in the process, we can help you and your loved ones. Contact us today to get the help you need.
We are here to protect you, your family, and your business. Schedule a free consultation to discuss the best way to protect your future.
Having guardianship over someone else means that you are responsible for making certain decisions on their behalf. Generally, these decisions will be in regards to finances and physical/medical well-being.
In general, a legal guardian will be responsible for making decisions about the well-being of their ward. Usually, this means making decisions about medical treatments, living arrangements, etc. A conservator is generally in charge of making decisions about their ward’s estate (such as the sale of assets, making investments, paying bills, etc).
Marriage, on its own, would not supersede an existing guardianship. A petition would need to be made to the court for a restoration in order to terminate the guardianship. Then it is possible for the new spouse to be named guardian through another legal proceeding.
