Five Truths and One Lie About Guardianship

Guardianship and conservatorship is the process where a court authorizes another to make decisions for someone who is incapacitated; i.e., someone who is partially or completely functionally impaired to the extent that he is unable to manage his/her personal and/or financial affairs. A guardian has authority to make personal decisions for the person who is incapacitated, including medical decisions and residential placement decisions. A conservator has authority to make financial decisions for the person who is incapacitated. Not every incapacitated person needs a guardian and conservator. Guardianship is necessary when the incapacitated person has not executed a Power of Attorney to appoint a surrogate decision-maker, or for some reason, the agent appointed by the Power of Attorney is unable to act in the principle’s best interest.

Guardianship is often misunderstood. Following are five truths and one lie about guardianship:

Truth 1: Guardianship proceedings are confidential, meaning that the records, reports and evidence submitted to the court or recorded by the court are not available to the public. Why? Because the kind of evidence necessary to prove incapacity is highly personal and private. It includes financial information, the disability or diseases that the protected person suffers from, and his or her level of functioning. Confidentiality is necessary to protect the protected person’s privacy interests.

Truth 2: Notice of the hearing must be given to the person alleged to be incapacitated, to his or her spouse, to his or her parents and adult children. If there are no adult children, then notice must be given to at least one of the person’s closest adult relatives.

Truth 3: The person alleged to be incapacitated must be present at the hearing unless the court determines by evidence that it is not in the person’s best interest because of a threat to the health or safety of the alleged incapacitated person. Hearings can be conducted at the location of the alleged incapacitated person if he or she is unable to be in court. In addition, the position of the person who is alleged to be incapacitated must be presented to the Court by the Guardian ad litem.

Truth 4: In addition to determining if the person alleged to be incapacitated needs a guardian or conservator, the process involves an inquiry into whether the proposed guardian and conservator are qualified, suitable and willing to serve. They must demonstrate that they will act in the protected person’s best interest.

Truth 5: The court maintains continued jurisdiction over guardianship proceedings. Guardians and conservators are required to file annual reports and accountings. In Bernalillo County, judges and the special masters monitor the filing of annual reports and review them.

Lie: Guardianship strips a person of his or her civil rights. Our statute says, “an incapacitated person for whom a guardian has been appointed retains all legal and civil rights except those which have been expressly limited by court order or have been specifically granted to the guardian by the court.”