Guardianship and Conservatorship

What is a Guardianship or Conservatorship?

A guardianship is when a court appoints someone to manage the health and well-being of another person. A Conservatorship is when a court appoints someone to manage the income and assets of another person. The person appointed by a court to make medical and placement decisions for another person is called a guardian. The person appointed by a court to protect the funds of another person is called a conservator. The “other person” being protected is the called the Ward or Protectee.

When is a Guardianship or Conservatorship required?

A guardianship and conservatorship become necessary when a person does not have a power of attorney and the person becomes unable to communicate or make their own decisions, whether due to illness, accident or injury.

Every adult is assumed to be capable of making their own decisions, unless a court determines otherwise. Based upon information provided by medical professionals and others, a judge will determine whether a guardianship or conservatorship is necessary. In some cases this is easier than others. If a person is in a coma, they can’t communicate. However, if a person has dementia and is making very bad health and financial decisions this can be a much more difficult determination. People with mental illness or developmental disabilities do not automatically need a guardian or conservator.

How is a Guardianship or Conservatorship set up?

Because the guardianship or conservatorship is established by a court. Someone must file a petition with the Court to set it up. Generally, any person who is concerned about another’s decision making ability can file a Petition to have a guardian or conservator appointed. The person against whom the Petition is filed, and about whom people are concerned is call the Proposed Ward.

Once a Petition is on file, the court then has two decisions to make. First, does the Proposed Ward need a guardian or conservator. Second, who should serve as the guardian or conservator.

In going through this process, the first thing the court does is appoint an attorney to represent the proposed ward. This is a constitutional protection for the proposed ward. A guardianship or conservatorship takes away certain rights of the Proposed Ward and the courts do not take these proceedings lightly.

Can a Guardianship or Conservatorship be set up without an attorney?

The person who is supposed to be protected by a guardianship or conservatorship, the Proposed Ward, always has an attorney to represent their interests to the court. Some courts allow a person to file a petition for guardianship or conservatorship “pro se”, that is without an attorney. However due to the complex legal issues involved this can be risky.

The person proposed to be the guardian or conservator may want to be represented by an attorney from the beginning because there are serious legal consequences to taking on that role for another person.

A family member or members may also want to be represented by an attorney to be sure that the interests of the family, other family members and family assets.

There are alternatives to guardianship and conservatorship you may also wish to consider.

The first step toward preparing for the future is simple: Call 913-213-6585 or reach out to me online for a no-obligation consultation. We can then discuss next steps for creating an approach that fits your needs.