Conservatorship & Guardianship
A Conservatorship is the transfer of decision-making powers from one individual (who is deemed mentally incapable or incompetent in the making of decisions) to another, either temporarily or permanently.
A Guardianship is the appointment of a person to make decisions for a minor child. A Guardianship is available for individuals younger than 18, and a Conservatorship is for the purpose of adults over the age of 18.
What is the purpose and need of a Conservatorship?
A conservatorship is granted to a person (called a conservator) for the purpose of allowing the conservator to make healthcare and/or financial decisions for another adult person over the age of 18 in the event of temporary or permanent incapacitation or incompetence of the adult person. If an adult person is deemed incapacitated or incompetent, and therefore unable to care for themselves or make important decisions due to aging, mental or physical disability, (incompetence) or a temporary incapacitating condition, the Court may grant a conservator the authority by the transfer of such rights to manage the adult person and their property.
The need for a conservatorship is often in families with aging parents or individuals with a debilitating condition affecting their mental faculties, such as dementia and Alzheimer’s disease. The conservator is appointed by the court to protect the individual’s well-being and make important healthcare, financial, and legal decisions. A conservator will be legally responsible to comply with a property management plan established by the court and the conservator is not allowed to sell the property without court approval.
How does a Conservator get appointed?
An interested party desiring to become a Conservator for an adult person must file a petition for Conservatorship with the Court. The petition must include a sworn statement by a physician who has evaluated the person which states that the person is in need of a Conservator and providing the medical diagnosis in support for the need of the Conservatorship. The Court will appoint a Guardian ad Litem to investigate the facts of the case and make a recommendation to the Court as to whether (a) the person needs a Conservator, and (b) the person petitioning to become the Conservator is the appropriate party. The Court may also appoint an Attorney ad Litem to represent the interests of the adult person. The Court does this in all cases where the adult person/Respondent objects to the appointment of a Conservator. Conservatorships can be contested by other parties as well. A Court hearing is set to determine whether the adult person/Respondent needs the benefit of the Conservatorship and if so, whether the Petitioner is the appropriate party to be appointed as the Conservator. The Court makes the final decision as to whether a Conservatorship is justified, who the Conservator should be, and which rights and powers are removed from the Respondent and transferred to the Conservator, with a property management plan being required and submitted. Additionally, the Conservator is required to submit an annual accounting and a medical report indicating that a conservatorship continues to be necessary.
What is the purpose of a Guardianship?
In a circumstance where a minor’s parents cannot care for a child, the court may grant a person that will protect the child’s physical and mental well-being the authority for the purpose of making important decisions for the minor child. Should the minor have assets, an inheritance or property, tangible or intangible, an appointed legal guardian may be given the responsibility to manage, control and invest those assets, inheritance, or property as to ensure they are appropriately maintained until the minor child is an adult.
Generally, guardianships automatically terminate when the minor child turns 18, unless extended by the Court for good cause shown.
Guardianships that include management of the minor child’s assets necessitates an Order that is reflective of such authority in the legal guardian which is meant to protect the minor’s assets.
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