Who can serve as the guardian or conservator?

  • A court will honor the protected person’s express wishes for who he or she would like to serve as guardian or conservator, if possible.
  • Usually a family member will serve as guardian or conservator, but he or she must be qualified to serve.
  • If there are family conflicts, or if no family member is qualified to serve as guardian or conservator, it may be best to have a third party serve as guardian or conservator. There are professional guardians and conservators.

What are the duties of a guardian and a conservator?

  • A guardian must obtain court approval before moving a protected person outside of his or her home and must file an annual guardian’s report with the court summarizing the actions taken and important decisions made as guardian. A guardian is responsible for making decisions regarding the protected person’s care, comfort, and maintenance.
  • A conservator must file an inventory of the protected person’s assets with the court, transfer assets into the name of the conservatorship, obtain bond, and prepare and file annual accountings with the court outlining every receipt and disbursement of the protected person’s assets. A conservator is responsible for taking control of the protected person’s assets, paying bills and settling debts of the protected person, filing taxes, etc.
  • Guardians and conservators have a legal obligation to act in the best interest of the protected person.

What is a guardianship and conservatorship?

  • A guardianship is a legal proceeding where a court appoints a guardian to manage the health care and personal needs of a protected person.
  • A conservatorship is a legal proceeding where a court appoints a conservator to manage the financial affairs of a protected person.
  • A protected person refers to a person who needs help managing their health care, personal affairs, or financial affairs because they no longer have the mental capacity to do so without assistance.
  • A guardianship and conservatorship is only appropriate when less restrictive alternatives are not an option.

When is a guardianship or conservatorship necessary?

  • A guardianship is needed when a protected person is unable to provide for his or her own personal needs of health, food, clothing, or shelter.
  • A guardianship may be necessary to:
    • Place the protected person in a care facility (with court approval);
    • Make health care decisions for the protected person; and
    • Make other arrangements for the health, safety, and well being of the protected person.
  • A conservatorship is needed when a protected person is unable to manage his or her own financial affairs, or is unable to resist fraud or undue influence from others.
  • A conservatorship may be necessary to:
    • Sell the protected person’s personal and real property;
    • Mortgage, refinance, or encumber the protected person’s real property;
    • Transfer the protected person’s property to qualify for public benefits; and
    • Access assets titled solely in the name of the protected person.

What are the pros and cons of a guardianship and conservatorship?

  • The main benefit of a guardianship and conservatorship is that they are supervised by the court, which gives added protection to and oversight of the protected person.
  • The main drawback of a guardianship and conservatorship is that they are expensive and restrictive. Because guardianships and conservatorships restrict the liberties of a protected person, pursuing them can damage your relationship with the protected person.

Can I get an emergency guardianship or conservatorship?

An emergency guardianship or conservatorship is referred to as temporary guardianships or conservatorships. This is an expedited process that takes about 3 days, but you must demonstrate to the court that there is an immediate and serious threat of harm to the protected person or his or her property. Potential harm is not enough to qualify for a temporary guardianship or conservatorship. The protected person must be harming themselves, others or their property to get a temporary guardianship or conservatorship.

What are some less restrictive alternatives to a guardianship or conservatorship?

  • Family and friends can coordinate efforts to provide the care and assistance that a protected person may need.
  • Placement agencies, care managers, or social workers can provide health care management plans.
  • An advance directive for healthcare appoints a person to make health care decisions that are consistent with the protected person’s expressed wishes.
  • A durable power of attorney appoints a person to act on behalf of the protected person regarding his or her finances.
  • A trust appoints a trustee to manage the personal and financial needs of a protected person.
  • These options work well if the agent or trustee is acting consistently with the desires of the protected person. They are limited in that you cannot make a decision contrary to the protected person’s wishes, even if it is in his or her best interest.

What should I bring to my appointment with an attorney?

  • All the protected person’s estate planning documents: Will, trust, power of attorney, advance directive, etc.
  • Information about the protected person’s finances (income, social security, bank accounts, investment accounts, real property, taxes, etc.).
  • Contact information for the protected person, relatives, social workers, doctors, financial advisors or bankers and anyone else who may have information regarding the need for a guardianship or conservatorship.
  • Information regarding why there is a need for the guardianship and conservatorship. Stories that paint a picture why the protected person is unable to manage his or her own personal or financial affairs can be helpful.