Guardianship & Conservatorship

Often, people do not plan for illness or disability or have not created effective, legal powers of attorney. If so, or if a family member or someone you love is unable to care for themselves, whether a child or an adult, or may be a danger to themselves, it is possible to go to court and have someone appointed as that person’s Guardian. Sometimes a person may not be able to manage their financial affairs responsibly. If so, it is possible to go to court and have someone appointed conservator. Because either a guardianship or conservatorship takes away an individual’s civil rights, this can be a challenging process, and the court will be careful to craft any order appointing a Guardian or conservator to minimize the rights that are taken away and maximize the disabled person’s autonomy.

If you are wondering whether a family member or loved one may need a guardian or conservator,

Some facts:

• Guardianships and conservatorships can generally be avoided through an effective estate plan that includes a Medical Durable Power of Attorney and a General Durable Power of Attorney.
• Any guardianship or conservatorship established will seek to maximize the disabled, or protected, person’s independence and involvement.
• A guardian is responsible to look after the protected person’s well-being and personal care.
• A conservator is responsible for the protected person’s financial affairs.
• Anybody appointed as guardian or conservator of a protected person has a fiduciary duty to the protected person. This means that the guardian or conservator must always act in the best interest of that person.
• The court will appoint a person to visit the protected person before making a decision on whether to appoint a guardian or conservator.
• A guardian or conservator must give regular reports to the court about their activities.
• Guardians and conservators are entitled to reasonable compensation and reimbursement of out-of-pocket expenses.
• Guardians are not required to provide for the protected person out of the guardian’s own pocket or to provide physical custody for the protected person. Similarly, a guardian is not legally liable for the protected person’s actions. Liability of conservators is similarly limited.

Some traps to avoid:

• Good record-keeping and accounting is essential for both a guardian and a conservator.
• Any action that may be seen by the court as taken in the guardian or conservator’s interest can result in the guardian or conservator being held personal liable.
• An informal (not court appointed) guardian or conservator will be held to the same standard as a court-appointed guardian or conservator. Additional liabilities may result.
• No conservator or guardian should agree to be personally liable for the protected person’s food, shelter, or other obligations.

To find out what your options are,