Guardianships & Conservatorships

Guardians and conservators are court-appointed managers of other persons' personal affairs and property. A court may appoint one or both of these representatives when an individual becomes incapacitated and incapable of making decisions for himself or herself; that individual becomes a ward. The two concepts are closely related in the law, and guardianship and conservatorship legislation is often nearly identical. The major difference is the extent of powers guardians and conservators exercise: under guardianship, the appointee manages the incapacitated person's financial and personal affairs, while under conservatorship, the appointee deals with only those issues specified as necessary by the court. Some of the powers that a guardian or conservator may exercise include paying lawful debts; paying for support, maintenance and other expenses; possessing and managing the estate; collecting debts; and initiating lawsuits on behalf of the incapacitated person. Both guardians and conservators are compensated for their work from the incapacitated person's assets, despite the fact that their powers are court imposed rather than freely chosen.

Any person may petition the probate court for appointment of a guardianship or conservatorship. Potential guardians or conservators, potential wards, family members, close friends, or even concerned third parties may come before the court for this purpose. Usually, the petitioner is a family member with deep concerns about another individual's ability to manage without assistance. The petition must include information about the potential ward, the value of his or her property, name of and information about the proposed guardian or conservator, and reasons supporting the need for an appointment. The petitioner must prove the potential ward's incapacity, and the court will appoint a guardian or conservator only if it finds that the appointment is in the ward's best interests. If a ward regains capacity, anyone may bring a petition to end the arrangement. All that is required is a showing by the preponderance of the evidence that the ward is again capable of managing his or her affairs. The powers of the persons appointed may be limited to only those personal and financial matters where the need for assistance has been proven.

Usually, guardianship or conservatorship represents the last alternative available to concerned family members to prevent an incapacitated person from injuring his or her own interests through personal mismanagement. Often, the imposition of an appointment leads to family strife, either amongst family members or between the family and the ward. Guardianships and conservatorships may be avoided by advance planning, such as executing durable powers of attorney that authorize an agent to make financial and health care decisions. Living trusts also may allow quick responses by the trustee to manage property when incapacity affects the trustor. By planning in advance and establishing a representative who can step in immediately, a family can avoid court proceedings to appoint these representatives. Even with advance planning, unforeseen circumstances may require judicial intervention, such as when a person or institution refuses to honor a power of attorney.

Sample Caregiver Agreement

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Sample Caregiver Agreement

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