When an individual cannot care for themselves or their affairs, it may become necessary to have someone else take on that role to protect the person. A guardian or conservator (the term used depends on the state where the person lives) is a person appointed by a court to manage personal and/or financial decisions on behalf of another individual who lacks the capacity to do so, referred to as an incapacitated person. Courts do not readily grant guardianships, and only a court has the authority to remove a guardian once one is appointed. As a result, if you want to contest guardianship or conservatorship, either before or after it is granted, you must go to court to prove your case.
When Is a Guardian or Conservator Appointed?
Only a court can appoint a guardian or conservator, and only upon application. An interested person must petition the court to appoint a guardian or conservator for an incapacitated person. Usually, the petitioner is a family member or close friend but may be an administrator of a medical or residential care facility.
Generally, adults have the right to make their own decisions. Therefore, the interested party must prove that the allegedly incapacitated person’s condition requires the appointment of a guardian or conservator. Typically, a hearing will be held where evidence will be presented to the court regarding the allegedly incapacitated person’s inability to care for themselves and make decisions.
Importantly, if the court agrees that the individual is incapacitated, the court will also determine the least restrictive means required to protect the incapacitated person and may restrict the scope of authority granted to a guardian or conservator. This is done in consideration of the fact that giving any authority to a guardian or conservator, even for only limited decisions, takes away the incapacitated person’s autonomy. Accordingly, the courts will look to alternative sources of authority that might meet the needs of the incapacitated person, such as Powers of Attorney, Advance Medical Directives, and other options such as a representative payee for Social Security benefits.
Who Can Object to Guardianship or Conservatorship?
Interested parties can contest the appointment of a guardian or conservator if they believe it is not appropriate or necessary. They may also object to the specific guardian proposed to be appointed. Under the law, an interested party includes:
- The petitioner, who as stated above is usually someone with a close relationship to the incapacitated person
- The incapacitated person
- Other interested parties, such as spouses, relatives, friends, etc.
Notably, the incapacitated person can provide testimony regarding whether they consent or object to the guardianship or proposed guardian.
When Can You Remove a Guardian or Conservator?
The most common reasons for seeking to remove a guardian or conservator are because:
- The incapacitated person’s condition has improved so there is no longer a need for a guardian or conservator
- The guardian or conservator is acting inappropriately or failing to act to the detriment of the incapacitated person (e.g., the guardian misappropriated funds, failed to act for the welfare of the incapacitated person, etc.)
- Another person has been identified who is more suitable to be appointed as guardian or conservator.
How Does a Guardian or Conservator Get Removed?
A guardian or conservator cannot be removed without a court order. The process for seeking removal is similar to the one used to get a guardian or conservator appointed initially. An interested party must bring a new petition to the court to have a guardian or conservator removed. Evidence must be presented as to why the person should be removed. The court will then make a determination and issue a new order to remove the guardian and appoint a new one.
Do You Need a Lawyer to Contest a Guardianship or Conservatorship?
Courts have many rules and procedures that can make it difficult for nonlawyers to represent themselves. In guardianship or conservatorship proceedings, the stakes are high. As an interested party, you want to make sure that you have an opportunity to be heard by the judge and present any evidence that will lead to a determination that is in the best interests of the incapacitated person. If you are in this situation, contact our firm for help. We have extensive experience with guardianship matters and can guide you through the process.
