A Guardian is a person appointed by the court to have the legal authority to manage the care of a disabled or incapacitated person. The disabled or incapacitated person is referred to as the “ward.” The Guardian will primarily make decisions regarding where the ward lives, oversee their daily activities, and determine what medical care is received. In addition to appointing a Guardian, a court may also appoint a Conservator. A Conservator is a person appointed to protect and handle the financial affairs for the ward. The court can appoint only a Guardian or only a Conservator, but most families petition the court for the appointment of both a Guardian and a Conservator.
It is difficult for families when an elderly family member is no longer able to care for their own daily needs and must have a Guardian and Conservator appointed. This can usually be avoided by having a proper General Durable Power of Attorney (commonly known as a Financial Power of Attorney) already in place. However, when there was not a Power of Attorney previously created, a petition must be filed with the probate court requesting the appointment of a Guardian and/or Conservator. This can also be done when an adult family member becomes disabled or when a disabled minor reaches the age of eighteen.
How do you determine whether a person is in need of a Guardian and/or Conservator?
The probate court will not appoint a Guardian and/or Conservator unless it is proven that a person does not have the capacity to handle their own affairs. In order to establish in court that a person is incapacitated and cannot manage their own affairs, you will be required to provide a letter or other proof from a licensed medical doctor stating the nature of their patient’s medical condition with an opinion that their patient lacks the capacity to meet certain required needs. To prove the need for a Guardian, the doctor would need to state that the person lacks the capacity to meet their essential daily living requirements for food, clothing, shelter, safety or other care such that serious physical injury, illness or disease is likely to occur because of their physical or mental condition. When requesting the appointment of a Conservator, the doctor would need to state that the person lacks the ability to manage their financial resources without supervision because of their physical or mental condition.
What are the downsides to filing for Guardianship and Conservatorship?
The biggest complaint of family members filing for a Guardianship and Conservatorship is that the court must approve all expenditures of money. The family member appointed in charge usually prefers to be able to spend money for whatever they feel is best for the disabled or incapacitated adult they are charged with caring for. However, the court actually makes the final decision on what is best for the person and how best to spend their funds. In cases where the adult still has the capacity to make some financial decisions for themselves, a General Durable Power of Attorney may still be capable of being signed which would avoid the necessity of a Conservatorship, making a Guardianship all that would be necessary. In that case, the court would no longer be in charge of making the determination regarding how to spend the disabled or incapacitated adult’s money.