Guardianship and Conservatorship
We know that many of you are caregivers for your spouses, parents, children, and other close loved ones. We also know that being a caregiver comes with countless responsibilities and hurdles. If you have loved ones who no longer have the capacity to care for themselves or make decisions for themselves, guardianship and conservatorship may be the only route for you to care for them in a comprehensive way.
In a guardianship/conservatorship, the two primary parties are (1) a ward and (2) a guardian/conservator. The ward is the incapacitated person who requires someone else to take care of their needs and their decisions. The guardian is the person appointed to be legally in charge of the ward, taking care of the ward’s health-related and personal needs. The conservator, oftentimes the same person as the guardian, is legally in charge of the ward’s financial and legal concerns.
You should consider petitioning for guardianship and conservatorship if:
- You are taking care of a person who can no longer manage either their own health or their finances
- Healthcare professionals have indicated that your loved one no longer has the capacity to make their own decisions anymore
- You are unable to get things done for your loved one because you do not have legal authority to act on their behalf
What’s the difference between guardianship and conservatorship?
- Guardianship is a legal proceeding in which the court appoints someone to manage another’s person (personal care, health, lifestyle) after determining that person lacks capacity to take care of themselves.
- Conservatorship is a legal proceeding in which the court appoints someone to manage another’s estate (finances, administrative and legal decisions) after determining that person lacks capacity to manage their own affairs.
What does the legal process look like for guardianship and conservatorship?
- You will need to get a physician’s statement (there is a court form for this) from the ward’s doctor stating incapacity and necessity for a guardian or conservator
- There will be a background check, e.g., fingerprints, credit check, to ensure you are fit and able to perform as guardian or conservator
- You will need to apply for and obtain a bond for conservatorship
- You may be able to waive this bond if you have a parent-child relationship with the ward
- You will then file a petition for guardianship and/or conservatorship
- The court will then appoint guardian ad litem (or other court-appointed attorney) so that the ward’s interests have legal representation through this process
- After you file, you will also need to serve notice to the ward’s roommates and relatives about the guardianship and/or conservatorship hearing
- The guardian ad litem will meet with the ward to assess the circumstances and to protect the ward’s interests
- You will then have a court hearing – the judge will gather information needed, including witness testimony, to make a determination about the guardianship and/or conservatorship
- You will then be appointed as guardian and/or conservator
- After appointment, you will be responsible for annual reporting to the court, as well as renewing your bond if you are a conservator
Duties of a guardian or conservator include:
- Fiduciary duty to make decisions for the ward’s best interests
- Cooperate with the court’s oversight in decision-making
- Ensure bills are paid
- Ensure taxes are filed
- Ensure investments are overseen and daily necessities are met
- Ensure that the ward receives any necessary health care that may be required
- Ensure the welfare and safety of the ward
What are my options besides a full guardianship or conservatorship?
Sometimes, guardianship or conservatorship is only needed for a limited period of time or for a limited purpose. There are temporary guardianships and conservatorships, where you can step in as someone’s guardian and conservator for a foreseeable period in which they are incapacitated. Likewise, limited guardianships and conservatorships can be helpful if there are some rights (e.g., the right to vote) that the ward would like to retain despite needing a guardian or conservator.
If you are considering obtaining a guardianship or conservatorship to help you take care of your loved ones, contact the attorneys at TuckerAllen to discuss options tailored for your circumstances.
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