Guardianship & Conservatorship
There may come the time when someone you love needs special care and attention to personal affairs. A court appoints a guardian or a conservator depending on what type of decisions need to be made for the protected person, ward, or conservatee.
Wards are minors or incapacitated adults who lack sufficient fitness or capability to make or communicate responsible personal decisions, and for whom the court appoints a guardian. The guardian is authorized to make decisions for the ward on matters such as where to live, medical decisions, education, training, and more.
A guardian must assure that provisions have been made for the ward’s care and comfort. This includes food, social requirements, and health care. If possible, the guardian should meet these needs through government programs, rather than using the ward’s estate.
Guardians must respect the ward’s moral and religious beliefs when enabling the ward to receive necessary medical and professional care. They also have to take reasonable care of the ward’s personal effects, like clothing, furniture, etc.
On at least an annual basis, the guardian must file a report with the court describing the ward’s wellbeing. This report must contain the ward’s current mental, physical, and social condition. The living arrangements and all addresses of the ward covering the period of the report must be accounted for. In addition, all services, including medical, educational, and vocational, must be reported. Finally, the guardian must provide a recommendation as to whether the guardianship should continue.
The conservatee or protected person is the legal name for a person for whom a conservator has been appointed because they lack the capacity or ability to make necessary decisions regarding their financial affairs or estate.
The nomination of a conservator, or conservatorship planning, involves a document (like a will) that names the person you (the protected person) want as your conservator. The document can also spell out how the conservatee wants financial matters managed by the conservator. Since conservatorships are subject to court supervision, having an attorney represent your interests is an added safeguard for the conservatee’s property.
The conservator is required to provide an inventory of the conservatee’s estate within 60 days after being appointed. The conservatee’s estate includes real estate, furniture, clothing, mortgages, debts or notes, bonds, and any other property. Since the conservator must file an inventory of the conservatee’s property with accounting and other reports to the court annually, the conservatorship offers a high degree of protection to the conservatee.
Conservatorships are not without disadvantages, however. They are time-consuming and expensive. As indicated, the conservator must keep detailed records and file papers with the court regularly. Conservatorships often require court hearings and the continued assistance of an attorney.
The support, maintenance, and education of a conservatee are paid for by the conservator, using government benefits when available. The conservator pays the conservatee’s debts and manages the conservatee’s estate. The conservator must sometimes post a bond that serves as a guarantee that the conservator will discharge their duties faithfully. The court may also require that certain transactions must be approved before the conservator may act, such as selling real estate or entering into unconventional investments.
Alternatives to a Conservatorship or Guardianship
A competent person may establish a revocable living trust and avoid the need to appoint a conservator of their estate. The appointed trustee would assume management of the financial affairs upon the trustor’s incapacity.
A durable power of attorney is a document delegating power to an agent to make financial transactions. Again, the person must be competent to execute a durable power of attorney, and the agent is not subject to court review.
A person may nominate an agent to make health care decisions on the person’s behalf using a health care directive. Such a directive can include a provision allowing for the suspension or continuation of life support treatment. Specific instructions as to health care may also be provided in the directive. As with the living trust and durable power of attorney, the person must be competent to execute a health care directive.
If you or someone you love is unable to meet personal needs for medical care or financial decisions and investigating a guardianship or conservatorship would be a reasonable consideration, get your questions about the process answered by calling (763) 292-2102 for a free consultation with our skilled lawyers at Bolt Hoffer Boyd Law Firm.