Avoid Guardianship

Conservatorship & Guardianship

What Is Conservatorship and Guardianship?

Conservatorship and guardianship typically result from court proceedings in which the court appoints someone (a “conservator” or “guardian”) to manage another person’s financial affairs (conservator) or personal care (guardian) decisions. Generally, those
proceedings are permitted only when a person becomes so incapacitated or impaired that he or she is unable to make financial or personal decisions, and has no other viable option for delegating these duties to another (e.g., through a durable power of attorney, living trust, or some other means).  Conservatorship and guardianship appointment must be by a court order unless someone has a plan in place to handle incapacity.  Have you made any plans for the management of your estate and personal care in the case of incapacity?

What Are the Duties of a Guardian?

A guardian has the duty to assure that provisions have been made for the ward’s care and comfort, including food, health care, and social
requirements. Whenever possible, the guardian should meet these needs through governmental benefits or services to which the ward is entitled, rather than from the ward’s estate.  Many times a spouse or child will be named as a guardian.  This is not automatic and will require the spouse or child to hire an attorney to handle the matter in court.

What Are the Duties of a Conservator?

Within 60 days after being appointed by a judge, a conservator must inventory the protected person’s estate, including any real estate, furniture, clothing, mortgages, bonds, notes or debts, and any other personal property.  Thereafter, the conservator must file an annual accounting with the court showing, in detail, all property received and disbursed, and listing all property on hand.  The conservator must pay for the support, maintenance, and education of a protected person, using government benefits when available; pay the protected person’s debts; and manage the protected person’s estate.

What Are the Disadvantages of a Conservatorship or Guardianship?

Conservatorships and guardianships are time consuming and expensive; they often require court hearings and the ongoing assistance of a
lawyer.  The paperwork can also be a hassle because the conservator must keep detailed records and file court papers on a regular basis.
The conservatorship can also be a cumbersome method of managing a person’s financial affairs, as the conservator must return to court for approval of certain transactions, such as the sale of real property, borrowing money, setting up a trust, etc. These formal court hearings require additional attorney fees and can create delays in completing these transactions.  Guardianships and conservatorships can be granted to anyone that petitions the court and is approved by a judge.  If there are disagreements in the family this may cause challenges for the family at this difficult time.   

What Are the Alternatives to a Conservatorship or Guardianship?

Revocable Living Trust

Through the establishment of a revocable living trust the individual can appoint a trustee to manage his or her financial affairs and thus can avoid the need for an appointment of a conservator of the estate.  A person must be competent to establish a living trust so it is critical that planning be done before this happens!  Conservatorships are time consuming and expensive; they often require on going court hearings and the ongoing assistance of a lawyer.

We often recommend the use of trusts to help manage your incapacity.  With the proper use of a revocable living trust, durable power of attorney, guardianship and a healthcare directive you can help your loved ones avoid the cost and hassle of dealing with attorneys and court hearings.  Allowing them peace of mind and removing the distraction from your care that a guardianship or conservatorship process can bring.

What is a Durable Power of Attorney for Asset Management?

A durable power of attorney is a document in which the individual can delegate to an agent the power to make financial transactions on his behalf if he is unable to do so himself. However, the individual must be competent to execute a durable power of attorney, and the agent acting under the durable power of attorney is not subject to regular court review of his or her actions.

What is a Health Care Directive?

An individual can nominate an agent to make health care decisions on his behalf in a health care directive. These health care decisions can include the decision to suspend or continue the provision of life support treatment. The individual can also give specific instructions as to health care in the directive.  As with a living trust and durable power of attorney for asset management, a person must be competent to execute a health care directive.  Who do you want to make decisions concerning your care?  A person appointed by a judge or someone you choose?

The information contained in this document is not legal advice and is for educational purposes only.