What Is a Guardianship or Conservatorship and When Is It Necessary?

The purpose of a guardianship or conservatorship is to ensure that continuing care is provided for you if you are unable to take care of yourself or your property. An illness or disability alone is not sufficient reason for guardianship or conservatorship. A guardianship or conservatorship will be imposed only if you are determined to be incapacitated and in need of a guardian or conservator.

The granting of guardianship or conservatorship is done through a Living Probate proceeding. During this public proceeding, testimony is given as to your state of ability and the Court determines whether or not you are incompetent and in need of a guardian and/or conservator.

Although it varies from state to state, Living Probate usually involves these steps:

• Papers are filed in court to declare that you are legally incompetent.
• Interested parties will be notified.
• A notice of the hearing will be published.
• A hearing will take place.

Before appointing a guardian or conservator, the Judge must be persuaded that:

• You are incapacitated;
• You need someone to make personal decisions for you and/or manage your affairs; and
• The proposed guardian or conservator is suitable, willing, and able.

What is the Difference Between a Guardian and a Conservator?

A guardian is an individual, organization, or State agency appointed by the Probate Court to make decisions on your behalf. Once the court appoints a guardian for you, you are then known as a “ward.”

The Probate Court may give the guardian the authority to make decisions about you, such as:

• Where you will live,
• Whether you go into a facility, and
• What medical treatment you will receive

A conservator, on the other hand is an individual, corporation, or State agency appointed by the Court to protect and manage your money and property. The person under conservatorship is called a “protected person.”

Some people are able to make responsible decisions in some but not all areas of their lives. In such situations, a guardianship or conservatorship will be limited by the Probate Court to only those areas in which you do not have the capacity to make responsible decisions.

For example:

• A guardianship could be limited to providing consent for medical treatment; or
• The Probate Court could limit a conservatorship by specifically withholding from a conservator the power to sell certain assets.

The same person can be both guardian and conservator or there may be a different person for each responsibility. Any suitable, willing and able adult or institution, or certain State agencies, may be appointed guardian or conservator. The Probate Court will make the final decision based on your best interests.

What Will It Cost to Obtain a Private Guardianship or Conservatorship?

There are several costs involved in filing for guardianship or conservatorship. They are as follows:

• Fees to the Probate Court for filing the petition;
• Fees charged by the physician or psychologist for evaluating the individual’s capacity, writing the report required by the Court and testifying; and
• Fees paid to the Visitor, Guardian ad Litem or Attorney.

There may also be attorney’s fees if the individual opposes the guardianship or conservatorship.

What Are the Disadvantages and Advantages of a Guardianship or Conservatorship?

One of the biggest disadvantages of a guardianship or conservatorship is that the court proceedings are public. This opens you up to embarrassment since the intimate details of your incapacity and finances are discussed at length and debated.

Other disadvantages include:

• Expense
• No guarantee that you would have agreed with the court appointed guardian or conservator

A major advantage of a guardianship is that the courts watch every move the guardian makes in relation to the assets. Some feel this provides increased protection, as well as establishing the authority of a guardian, since third parties must deal with the guardian due to the court’s supervision.

When is It Not Necessary to Have a Guardianship or Conservatorship?

Not everyone who is incapacitated needs a guardian or conservator. In some cases someone may already have the legal authority to make decisions on behalf of that person. Some common legal arrangements are:

• A Living Will
• A Power of Attorney for Health Care
• A Durable Financial Power of Attorney
• A Revocable Living Trust

Depending on the circumstances, a guardianship or conservatorship may not be necessary if a person who is now incapacitated previously executed one or more of these documents and the documents encompass the types of decisions that need to be made.

If you want to plan ahead to avoid Living Probate, you can contact a qualified estate planning attorney. They will be able to help you put together the necessary powers of attorney and a Revocable Living Trust estate plan that will include provisions for both your incapacity and death.