Guardianship and Conservatorship

When an adult is unable to make their personal or medical decisions or handle their financial matters, a Guardianship or Conservatorship may be the best way to keep that individual safe and financially sound. Only the Court may appoint a Guardian or Conservator, and each situation is unique. We have handled hundreds of Guardianship and Conservatorship proceedings, and represent individuals, licensed fiduciaries, financial institutions, and governmental agencies as Guardians and/or Conservators.

Guardianship

In general, a Guardian has the duty and authority to make the personal and health care decisions for an incapacitated adult, similar to that of a parent over their minor child. The Guardian’s authority may be full or limited, temporary and/or permanent, with or without inpatient mental health authority, or any combination thereof as required to meet the demonstrated needs of the incapacitated adult.

Conservatorship

In general, a Conservator manages an individual’s financial matters when the individual is not able to do so and there is no appropriate alternative arrangement available (e.g., trust and/or durable financial power of attorney). The Conservator is responsible for handling financial matters of the person in need of protection, and the authority may be full or limited, temporary and/or permanent.

Problem- Solution: When is Guardianship and/or Conservatorship the Answer?

There are many scenarios where guardianship and/or conservatorship is the best or only way to protect someone you care about. First, it is important to know that for medical decision making an Agent under Health Care Power of Attorney or, if none, the surrogate medical decision maker by law has legal authority to make medical decisions for an incapacitated adult. Similarly, if the person in need of protection has a Trust and/or Durable Financial Power of Attorney the Successor Trustee and/or Agent can manage financial matters. However, even with estate planning documents in place there are circumstances where Guardianship or Conservatorship is necessary. The following are just a few typical examples of when Guardianship and/or Conservatorship may be the solution you need:

Elderly Incapacitated Adult

Mom (single, age 82) has Alzheimer’s with behavioral issues and significant short term memory loss. You are the Agent under her Health Care and Financial Powers of Attorney documents. Mom refuses to take her medications, visit the doctor, or let caregivers into her home. She frequently calls confused and anxious and has history of wandering. She recently gave money to a sweepstakes scam and a distant relative but does not understand or recall these transactions. Her doctors have recommended she move to memory care and you agree, but she refuses. What can you do? Nothing without Guardianship. By law she can still refuse medical care and placement for the reason your authority as Agent does not override her express verbal wishes. The solution? Guardianship. As her legal Guardian, you would solely control and direct appropriate medical and placement decisions, even over her objections, like a parent does for their minor child. After guardianship? Mom’s needs are met in a memory care community and her behaviors improve with the appropriate level of supervision and assistance with her activities of daily living, nutrition and hydration, socialization, and medical treatment. What about her money? Although you can pay her bills as Agent under her Financial Power of Attorney, she can also access her own accounts at the same time. To avoid potential exploitation, you want to have exclusive access to and control over her accounts and financial matters. The solution? Conservatorship. When you petition the Court for Guardianship you can also request Conservatorship in the same proceeding. After Conservatorship? Mom can no longer mismanage her assets; you have sole authority to manage her income, assets and accounts to ensure her funds will be used only for her long term care needs.

Seriously Ill or Injured Adult

Adult son (single, age 35, with 2 minor children) is involved in serious motor vehicle accident and suffers significant brain injury. At the time of the accident, he had no medical or financial powers of attorney in place. He is not competent to sign these documents now and cannot make his own medical decisions or handle financial matters. The doctors advise he may not be able to do so for the foreseeable future, if ever. Initially, the hospital allows you as his surrogate medical decision maker (parent) to make his medical treatment decisions. When discharged from the hospital, however, he will need admission to a rehab facility and then likely significant care and therapies thereafter. You determine that no one has access to his bank accounts to pay household and other expenses while he is in the hospital. You also need to hire an attorney to pursue claim(s) on behalf of your son against the at fault driver from the accident and make the short-term disability claim through his employee benefits. The problem: how will you be able to handle everything? The solution? Guardianship and Conservatorship. In this situation, you both temporary (emergency) and permanent might be needed. What if he later recovers? We can always terminate the guardianship and conservatorship when it is no longer necessary.

Developmentally Disabled Adult

You have a 17 year old daughter diagnosed with low-functioning (level 3) Autism and epilepsy. She needs help with most activities of daily living and has communication difficulties. However, at age 18 she will be a legal adult which means that despite her diagnoses and demonstrated needs she will be able to make her own educational, medical, and personal decisions. In fact, you may no longer have access to her educational or medical information. The problem: you need to be able to continue in your parent role, including but not limited to, making medical and living arrangement decisions, participating is school IEP meetings, and coordinating services through DDD and ALTCS. The solution? You can file for Guardianship as soon as she reaches 17 ½ years of age.

What if your daughter has level 2 Autism and epilepsy? While she might still require some support, she may also be able to handle many of life’s decisions independently. You and her doctors, however, have particular concern about her ability to independently handle medical decisions and give informed consent. The solution? Perhaps Limited Guardianship where you have authority limited to medical decision making only, and she specifically retains the rights to be able to drive, vote, or make her own education or living arrangements, consistent with her abilities. A limited Guardianship can foster independence with specific safeguards.

This information is only general in nature and not intended to provide legal advice. You should not act or refrain from any course of action based upon the information herein. Every situation is unique; you should always seek advice of an experienced elder law attorney when it comes to your personal circumstances. Bivens & Associates PLLC can help you through the entire process, no matter how complex your circumstances may be.

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For more information on Guardianship and Conservatorship, see our Frequently Asked Questions.