What are guardianships and conservatorships?
Guardianship and conservatorship are legal relationships whereby the Probate Court gives one person (the guardian or conservator) the power to make decisions for another (the ward). As of July 1, 2009, the probate have begun distinguishing between guardians and conservators in a new way. Now, guardians only have authority over personal and medical decisions and conservators only have authority over financial decision. A guardian or conservator may be appointed when a Probate Court determines that an individual is incapacitated to such degree that they are unable to care for herself or her assets.
When is a guardianship or conservatorship appropriate?
Guardianship or conservatorship is appropriate when impaired judgment or capacity poses a major threat to a person's welfare. A medical evaluation by a licensed physician is necessary to establish the proposed ward's condition. However, only a court can determine the need for a guardian or conservator.
How can I become a guardian or conservator?
Assuming that a physician is prepared to attest to the proposed ward's incompetence, a petition must be filed with the Probate Court requesting the appointment of a guardian. Two petitioners must sign the petition and the proposed guardian must file a bond with the court. Then, the court directs which individuals must receive notice of the legal proceedings. Notice must be given to the proposed ward, the heirs of the ward, the person the ward lives with, and their agents under a durable power of attorney or health care proxy. The court sets a date by which anyone wishing to object may do so, including the proposed ward. Then a hearing is held where a judge decides whether a guardian or conservator should be appointed. The court can either name one individual to serve as both guardian and conservator or different people to serve in each role.
How long does this appointment last?
A temporary appointment can last 90 days. A permanent appointment may last until the death of the ward or the guardian, until the ward is able to establish that she is competent, or until the guardian or conservator resigns or is removed by the Probate Court.
What authority does the guardian or conservator have?
Unless limited by the court, the guardian has total control over the personal decisions of the ward and the conservator has authority of all financial decisions. This includes deciding where the ward will live, determining how the ward's funds will be spent and making routine medical decisions for the ward. For medical decisions involving extraordinary medical care, nursing home admission, the administration of anti-psychotic drugs, commitment to a mental health facility or the sale of the ward's real estate, the guardian has to seek the approval of the court in a separate proceeding. The conservator must seek court authority to make any gifts or to implement an estate plan for the ward.
What are the responsibilities of the guardian or conservator?
In addition to those concerning authority to consent to medical treatment, the guardian must report back to the court regarding the ward's care and living situation. The conservator must account carefully for all of the ward's income and any expenditures made on this or her behalf. This is accomplished by the conservator filing an inventory listing the ward's assets with the court as of the date of appointment and by filing annual accounts with the court detailing all the income and expenses the ward has. A final account must be filed when the conservatorship is terminated. The guardian and conservator are liable for their acts until the court allows (approves) the account.
What are the alternatives to guardianship or conservatorship?
There are several less restrictive alternatives to guardianship or conservatorship. These include the durable powers of attorney, representative payees, trusts and health care proxies. Each of these options may avoid or delay the need for a guardian. These documents need to be executed before the individual is incapable of doing so due to mental impairment.
