Q & A About Guardianship and Conservatorship
What is Guardianship? The court approved process of appointing a person or agency to act on behalf of an incapacitated adult who is unable to manage some or all aspects of his or her care.
What is Conservatorship? The court approved process of appointing a person or agency to manage the financial affairs of an incapacitated adult who is unable to do so him or herself.
When are Guardianship and/or Conservatorship needed? The two most common circumstances under which Guardianship and/or Conservatorship are needed are when disabled individuals turn 18, and with adults who lose the ability to manage their own care and/or finances and do not have Powers of Attorney in place or Powers of Attorney are not being honored. In the first instance, when a child turns 18, his or her parents no longer have a legal right to obtain information or act on the child’s behalf. However, a disabled child may still require assistance with healthcare decisions, obtaining appropriate living arrangements, medication management, obtaining public benefits, or managing money. In the second instance, an adult may lose the ability to manage his or her own care or finances due to an accident, illness or cognitive decline.
What is the process for obtaining guardianship or conservatorship?
An interested person can ask the Court to appoint a guardian and/or conservator for a person in need of protection (“the Protected Person”). The person making the request is called the Petitioner. He or she may also be the proposed guardian and/or conservator, or he or she may be asking the Court to appoint another individual or agency. The Petitioner informs the Protected Person’s closest family members that they are making this request to the Court. The Court appoints an attorney, called a Guardian ad Litem (GAL), to investigate the situation and make recommendations to the Court in the Protected Person’s best interests. The Court also appoints a doctor to evaluate whether the Protected Person has capacity to care for him or herself and/or his or her finances. Lastly, the Court appoints a social worker to evaluate the Protected Person and make recommendations to the Court as to the extent of assistance the Protected Person needs. The Petitioner suggests professionals to fill these rolls. Once all of the professionals make their reports to the Court, the Court holds a hearing at which the Judge appoints an appropriate guardian or conservator to the extent that the evidence and recommendations support that the Protected Person is incapacitated and needs assistance.
What happens after a Guardian and/or Conservator is appointed?
Once a Guardian or Conservator is appointed, the Guardian and/or Conservator is required to make an initial report to the Court within 90 days, establishing what the Protected Person has, his or her current living situation, and the status of his or her health as a starting point for the Court’s supervision. Each year the guardian and/or conservator must submit a report to the Court to update the Court as to the Protected Person’s status. The Court can hold a hearing any time the Court feels it is necessary, but at least every 10 years. If the Protected Person ever regains capacity to manage his or her care and/or finances, the guardianship and/or conservatorship can be terminated.
Alternatives to Guardianship?
A competent adult can create Powers of Attorney designating an agent to act on his or her behalf for healthcare and financial decisions. As long as Powers of Attorney are in place and being honored by all parties, Court intervention is not necessary.