Guardianships and Conservatorships
Few situations are as emotionally difficult as watching an adult family member or close friend deteriorate to the point that he or she is no longer able to make decisions regarding his or her own personal health, welfare or safety. Such a condition may be attributable to an addiction or some adverse life experience. It may be the result of a physical, emotional or mental disease or disability which robs a previously functioning individual of his or her ability to rationally process information and deal with ordinary life activities. Perhaps it is an otherwise healthy, normal child who is suddenly without both a mother and a father and in need of someone to assume the responsibilities ordinarily exercised by a functioning parent. These are situations in which a guardianship or conservatorship may become necessary.
Guardianships and conservatorships are protective proceedings in which a court may appoint a fiduciary to make decisions on behalf of a protected person who might be: (i) a minor (i.e., a child less than 18 years of age); (ii) an adult who is financially incapable, meaning the person cannot effectively manage his or her own financial resources for reasons such as an addiction, a physical or mental illness or disability or incarceration; or, (iii) otherwise incapacitated, meaning the person’s ability to receive and process information is impaired to the extent that he or she is unable meet the essential requirements for his or her own physical health or safety. Although both a guardian and conservator are answerable to the court for how they exercise their duties, their duties and responsibilities with respect to a protected person are different. A guardian’s focus is on the general well being of the protected person; that is his or her health, education, care and maintenance. By contrast, a conservator’s functions are focused more on handling the financial and business affairs of the protected person.
Both a guardianship and a conservatorship restrict the rights of the protected person. In each instance the fiduciary is authorized by a court to make decisions which would otherwise be made by the incapacitated adult or, in the case of a minor, by his or her parent(s). A court will scrutinize any petition for appointment of such a fiduciary and will carefully consider the objections, if any, of the protected person to the imposition of such a relationship. What follows is a brief look at these two different proceedings.
A person, referred to as the petitioner, who seeks the appointment of a guardian for another person, called the respondent, begins the process by filing a petition with the local court in which the respondent resides. Often, but not always, the petitioner is a family member of the respondent. The petition must identify the respondent by name, address and age and describe the specific circumstances which support the appointment of a guardian. The petitioner must also identify his or her own relationship to the respondent and nominate the petitioner’s choice for guardian; frequently, but not always, the petitioner will ask that he or she be appointed to the role. The petition must also identify third parties who may have knowledge of the respondent’s condition such as doctors or other family members.
Once the petition is filed with the court, notice of the filing must be given to the respondent and his or her parents, spouse, adult children or those with whom the respondent is closely related. The notice must also advise the respondent that he or she has the right to object to the appointment of any guardian and/or to the petitioner’s choice of guardian. The notice must also advise respondent of his or her right to a court hearing to oppose the request for a guardian.
Once the petition has been filed, the court will appoint a visitor for the purpose of interviewing the respondent and others with knowledge of the respondent’s circumstances including his or her doctors, teachers and family members. The visitor will be someone with the training and expertise to assess the respondent’s condition and evaluate his or her need for a guardian. In addition, the visitor will have a sufficient understanding of the law so as to inform the respondent of the nature and effect of a guardianship. The visitor will determine whether the respondent objects to the appointment of a guardian and whether a guardianship is appropriate given all of the circumstances. The visitor has fifteen days following his or her appointment in which to complete these tasks and submit a written report to the court for its review and consideration. The visitor’s report will identify those persons who were interviewed and advise the court whether a fiduciary is necessary and, if so, whether the petitioner’s nominee for that role is suitable. Although the court is not required to accept a visitor’s recommendations, it is unlikely that a guardianship will be established if the visitor recommends against it.
After receiving the visitor’s report, the court may schedule a hearing at which it will hear evidence regarding respondent and the petitioner’s request for appointment of a guardian. Such a hearing is mandatory if an objection to the petition is filed by any person. Following the hearing the court will either appoint a guardian or decline to do so and dismiss the petition. In the absence of any objections to appointment of a guardian, a court is authorized to appoint a guardian for the protected person who may or may not be the person nominated in the petition. Certain persons are disqualified by statute from appointment as a guardian including the respondent’s health care provider and respondent’s parent, if the protected person has ever been removed from that parent’s care because of abuse.
If a guardian is appointed the court will issue Letters of Guardianship with respect to the respondent who is now referred to as the protected person. The Letters will state the extent of the guardian’s authority and the court imposed limitations on that authority. A guardian’s duties and powers have statutory limitations as well as any limitations placed on the guardian by the court in the Letters of Guardianship. A guardian cannot, for example, authorize the sterilizations of a protected person or place an adult protected person in a treatment facility or other residential facility without first notifying the court.
Unless otherwise restricted by the court a guardian has custody of the protected person and can determine where the protected person lives, authorize his or her health care and otherwise provide for his/her care and maintenance. A guardian’s authority extends only to the degree necessary to promote and protect the protected person’s well being. The guardianship is designed to encourage the protected person’s maximum independence and self-reliance and to be no more restrictive of the protected person’s liberty than necessary. The protected person retains all legal rights except those that have been limited by the court.
A guardianship continues until the relationship is terminated by further order of the court or until the protected person dies or, if the protected person is a child, reaches the age of majority. The guardian must file an annual report with the court which summarizes actions taken by the guardian during the prior year on behalf of the protected person. The court which appointed the guardian retains continuing jurisdiction and may act upon its own authority at any time and in any manner it deems appropriate to inquire into the proper performance of the guardian’s duties. The court, on its own motion, can remove a guardian whenever the removal is in the best interests of the protected person.
A conservatorship process begins much the same way as a guardianship with the filing of a petition by someone concerned for the respondent’s financial decision making. Unlike a guardianship the court is not required to appoint a visitor to interview the respondent and report to the court, although the court retains that option. Similar to a guardianship the respondent has the right to contest the imposition of a conservatorship and/or challenge the choice of conservator; in either case the court is required to hold a hearing and give the respondent the opportunity to be heard on these issues.
As in the case of a guardianship, certain persons are disqualified by statute from being a conservator such as the respondent’s health care provider and respondent’s parent, if that parent has ever had the protected person removed from his or her care because of abuse. The conservator is authorized to collect and hold all assets of the protected person, buy/sell securities on his or her behalf and operate any business venture in which the protected person was engaged. As is the case with a guardian a conservator’s authority is statutorily limited; for example, a conservator cannot sell the protected person’s residence without court approval. A court will require that the conservator exercise “scrupulous good faith” in managing the protected person’s finances; everything the conservator does must be for the protected person’s economic interest.
A conservator will usually be required to post a bond as security for the faithful discharge of his or her duties. The bond amount will be based on the value of the protected person’s estate. Once appointed, a conservator takes possession of the protected person’s property and is charged with the responsibility to manage the protected person’s assets for his or her support, education, care and benefit. Similar to a guardian, a conservator is required to file an annual report consisting of an inventory of all of the protected person’s property which is in the possession and/or control of the conservator along with the conservator’s estimate of the cash value of those assets. The conservator is responsible to provide the court with an annual accounting of money or property received and disbursed during the accounting period showing what and how the conservator has acted in the best interests of the protected person.
As is the case with a guardian, a conservator can be removed by the court for failure to perform his or her duties, a conflict with the protected person, filing for bankruptcy or misconduct. The protected person can request a termination of the conservatorship upon his or her recovery from incapacity or if the value of the protected person’s estate is $10,000.00 or less.
A guardianship or conservatorship may become necessary when an individual is unable to effectively manage his or her own affairs or otherwise provide for his or her own health or safety. These proceedings allow concerned family members or friends to intervene so as to promote and protect another person’s well being when that person is incapable of doing so. Courts will exercise continuing supervision over a guardianship and conservatorship in order to ensure that their protective purposes are achieved and in a way which is respectful of the dignity and legal rights of the protected person.