Conservatorships and Guardianships for Adults
Conservatorships and Guardianships
What is a guardianship?
A guardianship is a legal proceeding where a court appoints a guardian to manage health care and personal needs of a protected person.
What is a conservatorship?
A conservatorship is a legal proceeding where a Court appoints a conservator to manage the financial affairs of a protected person.
Who is 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.
What are some less restrictive alternatives to a guardianship or conservatorship?
1. Family and friends can coordinate efforts to provide the care and assistance that a protected person may need.
2. Placement agencies, care managers, or social workers can be a wonderful resource for coming up with health care management plans.
3. An advance directive for healthcare appoints a person to make health care decisions that are consistent with the protected person’s expressed wishes.
4. A durable power of attorney appoints a person to act on behalf of the protected person regarding his or her finances.
5. A trust appoints a trustee to manage the personal and financial needs of a protected person.
6. 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.
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:
1. Place the protected person in a care facility (with court approval);
2. Make health care decisions for the protected person; and
3. 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:
1. Sell the protected person’s personal and real property;
2. Mortgage, refinance, or encumber the protected person’s real property;
3. Transfer the protected person’s property to qualify for public benefits; and
4. Access assets titled solely in the name of the protected person.
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 disinterested third party serve as guardian or conservator. There are professional guardians and conservators.