Guardianships and Conservatorships

Whether due to mental illness, cognitive decline in old age, traumatic brain injury,  incapacity due to a stroke or other medical event or a lifetime disability, concluding that a loved one can no longer care for themselves or make sound decisions is always a devastating realization. Deciding to designate someone to handle your loved one’s affairs and ensure they’re safe and well-cared for is often just as harrowing.

Smith Legacy Law provides legal counsel and advice to individuals and families on all aspects of estate planning, including guardianships and conservatorships. Whether you’re trying to arrange care for a minor child, seeking to protect an incompetent or incapacitated adult, or wish to plan for your own future, our skilled and knowledgable attorneys are ready to act as your guides and ensure you’re able to navigate the entire process with ease.

What Should I Know About Guardianships and Conservatorships

Though the laws and regulations may differ from state to state, generally guardians and conservators are appointed to make decisions and take actions on behalf of another individual who’s unable to do so on their own due to age, ill-health, or special needs. The individual under guardianship or conservatorship  is known as the “ward” or “incapacitated person”.

Guardian Versus Conservator

The terms “guardian” and “conservator” are sometimes interchangeable, but not always. Some states use both terms in different contexts. For example, a “guardian” may be appointed to handle the affairs of a minor child, while a “conservator” may be appointed to handle the affairs of an incapacitated adult. To make things slightly more confusing, there may be a “guardian of the person” appointed to make decisions about where the ward will live, work, go to school, and receive medical treatment, and a different individual appointed as the “guardian of the estate” or “conservator”, who is authorized to manage the financial affairs of the ward.

Guardianship of a Minor

Guardianship of a Minor is one the most common forms of guardianship. While parents usually have the legal authority to make decisions for the health and well-being of children under 18, a guardian will be appointed if the parents die, become incapacitated, or when a child has been subjected to abuse or neglect by their parents.

In the event that both parents of a minor child have died, at least one guardian will have been designated in their Will. If not, the choice of guardian will be left to the Probate Court. In either case, the guardianship will continue until the child turns 18. If the situation involves an abusive or incapacitated parent, the guardianship will continue until the Court is convinced that the parent can adequately and safely care for the child once more.

Parents maintain guardianship of children with intellectual disabilities until the child turns 18. If the child will require continued support and assistance once they enter adulthood, a parent or another interested party may petition the Court for guardianship or conservatorship of the adult child.

In some states,  the court does not automatically grant guardians authority to manage money belonging to a minor ward when funds exceed a certain amount, e.g., $10,000. In that scenario, the parents, the guardian, or another interested party must ask the probate court to appoint a “Guardian of the Estate” to handle the minor’s financial affairs.

Guardianship / Conservatorship of an Adult

While states often have varying regulations around Guardianships and Conservatorships, generally, adults may require a guardianship or conservatorship if illness or disability prevents them from caring for themselves or making sound decisions regarding their affairs. A guardianship or conservatorship may be voluntary, with the individual petitioning the Court to appoint someone on their behalf, or it may be involuntary, with proceedings initiated by a relative or other concerned individual.

The Court will consider a range of factors when determining whether or not to appoint a guardian or conservator, including but not limited to:

• The abilities of the individual.
• The individual’s capacity to understand and articulate an informed preference regarding their care or management of their affairs.
• The desirability of maintaining continuity in the individual’s life and environment.
• Whether they previously made adequate alternative arrangements for their care or the management of their affairs, such as by utilizing trusts, powers of attorney and/or advance medical directives.
• The availability of any supportive services, technologies, or other means to assist the individual in meeting their needs.

A Plenary Guardianship will be granted if an individual cannot make any decisions regarding their health and well-being. The Court’s decree will set forth the scope of the guardian’s authority. Depending on the specific circumstances of the case, the guardian may be charged with overseeing all decisions regarding:

• Residency and education
• Those pertaining to personal care, comfort, and safety
• Medical decisions, including whether to have surgery
• Decisions regarding public benefits/services

The Court will appoint a Limited Guardian when an individual with intellectual disabilities requires assistance with specific, but not all, areas of their life. The Court’s decree will detail all the powers that are granted to the guardian, as well as the powers retained by the ward.

Depending on the circumstances, the Court may appoint a different individual as guardian or conservator of the ward’s estate, who will then be authorized to manage the ward’s financial affairs.

Guardians and conservators are generally required to file regular reports and accounts with the Court until the guardianship or conservatorship has terminated. The cost of these reports can be quite high and may significantly deplete the ward’s estate over time. In addition, the process of obtaining a legal guardian or conservator and thereby losing personal freedom and autonomy may be humiliating and undignified for the ward. For these reasons, we generally advocate for advance planning to eliminate or reduce the need for guardianship or conservatorship, including the use of trusts, powers of attorney and advance medical directives. However, if and when a guardianship or conservatorship is required, we are ready, willing and able to guide you through the process.

Contact Smith Legacy Law Today

Our estate planning attorneys have extensive experience in guardianships and conservatorships. Whether you’re concerned about a loved one’s ability to care for themselves or want to prepare for the unexpected, they’ll help you determine which legal tools are most appropriate for your situation, draft the required legal documents, and guide you and your family through each step of this complex and difficult process.

To learn more about Guardianships and Conservatorships and the laws in your state, please contact Smith Legacy Law today.