Guardianships and Conservatorships
What are guardianships and conservatorships?
Everybody should designate someone they trust to handle their affairs in the event of an emergency. However, many people neglect to take this important step, and are left without anybody to make their medical and financial decisions if they become unable. Fortunately, certain legal devices are available to help people in this predicament.
Courts can appoint a guardian or conservator to make financial and legal decisions for those who have not made prior arrangements. Guardians are court-appointed to make medical decisions, and conservators are appointed to make financial or legal decisions. Once the court appoints a guardian or conservator, the person for whom they assume responsibility is known as the ward.
Depending on the situation, courts can give guardians and conservators broad or limited authority. When deciding whether to appoint a guardian or conservator, courts consider two factors: 1) Whether the proposed ward has previously appointed somebody to handle her medical and financial issues; and 2) Whether the proposed ward is legally incapacitated.
Who needs a guardian or conservator?
Courts appoint guardians and conservators to act for people who do not already have somebody to act for them, and who have lost capacity to make their own decisions. Incapacity is a legal term to describe people who cannot manage their affairs well. Without capacity, people cannot make binding medical or financial decisions, and must have somebody make these decisions for them. Somebody close to an incapacitated person can petition the court to appoint a guardian or conservator to help make these decisions.
Guardians and conservators are sometimes appointed to act for people who have been in accidents or who struggle with substance abuse. More commonly, however, guardians and conservators are appointed to act for seniors who have lost capacity. A typical scenario is where an adult child notices a decline in his aging parent’s ability to make safe decisions, and petitions the court to appoint a guardian or conservator. The court appoints a guardian or conservator if it agrees that the proposed ward is legally incapacitated.
What responsibilities do guardians have?
A guardian is responsible for making the ward’s healthcare decisions. Courts tailor a guardian’s authority to fit the ward’s needs, but responsibilities may include:
- Arranging an appropriate living situation based on the ward’s needs, abilities and financial resources.
- Placing the ward in an assisted living facility or skilled nursing facility if necessary.
- Making sure the ward has appropriate and sufficient clothing.
- Making sure the ward receives appropriate medical care.
- Reporting to the court about the ward’s health, welfare and status.
When is it necessary to seek a guardianship?
Courts only appoint guardians for proposed wards who do not have capacity to make appropriate medical decisions. Incapacity is sometimes difficult to ascertain, so courts ask the following types of questions when determining whether an individual requires a guardian:
- Does he have difficulty doing familiar tasks?
- Can he communicate clearly?
- Does he take medications as directed?
- Does he have extreme mood swings for no apparent reason?
- Does he become easily agitated, aggressive or combative?
- Does he lose things often or put things in inappropriate places?
- Does he forget where he is?
- Can he attend to and provide necessary food, shelter, clothing and medical care?
- Can he keep safe in stressful or emergency situations?
Can a guardian obtain mental healthcare for a ward?
Guardians can only consent to a ward’s outpatient mental healthcare, and this type of treatment is sometimes insufficient. Many of those diagnosed with Parkinson’s or Alzheimer’s, for instance, require inpatient mental health treatment. Other times inpatient treatment is necessary to treat severe depression or to adjust medications. Without proper authority, however, guardians cannot obtain inpatient care, no matter how much the ward requires it.
Only mental health guardians can obtain inpatient mental health treatment for a ward without first seeking the court’s permission. This authority is greater than that of other guardians, but it is limited to a one-year period, so timing is essential when petitioning the court for a mental health guardianship. Once petitioned, courts order a psychological evaluation to determine whether a proposed ward requires a mental health guardian. If the court agrees that a proposed ward requires a mental health guardian, it appoints such a guardian for a maximum of a one-year period.
What responsibilities do conservators have?
Conservators never have authority to make a ward’s medical decisions, but they have vast financial and legal authority over the ward’s affairs, including:
- Paying debts and expenses
- Bringing or defending legal actions
- Making an inventory that indicates the fair market value of the ward’s assets
- Prudently investing
- Acquiring or disposing of property
- Handling insurance claims
- Preserving and protecting estate property
- Paying income and property taxes
- Providing the court with an annual accounting of every expense
Courts make limited arrangements for individuals who need limited assistance, but who do not require a full conservatorship. For example, courts sometimes authorize a single transaction to re-title a bank account in joint tenancy or to transfer assets to a trust. Even these limited arrangements, however, require a court hearing and judicial oversight.
When is it necessary to establish a conservatorship?
Family members or friends typically initiate a conservatorship proceeding when they grow concerned about somebody are close to. Courts only appoint a conservator for those who cannot manage their finances personally. This is commonly because of the aging process, but it can also stem from illness, disability or substance abuse. Families questioning whether to initiate a conservatorship proceeding should begin by asking the following questions about the proposed ward:
- Can he handle every day financial issues like writing checks or balancing a checkbook?
- Could he be tricked into giving away money or property?
- Does he understand what his assets are and where they are located?
People with powers of attorney are less likely to require a conservator later in life. However, somebody whose agent under a power of attorney becomes unable or unwilling to act may still require a conservator. Similarly, a principal under a power of attorney who prevents his agent from assuming responsibility may also require a conservator. Establishing a conservatorship is an involved process, but sometimes it is the best protection for those who cannot protect their financial interests personally.