When is guardianship or conservatorship appropriate?
Most of the time, it is when the person’s medical condition makes it impossible for them to care for themselves or their assets. For example, in cases of Alzheimer's disease or dementia, the person might not have the ability to make decisions about their care. They often have trouble managing their money, due to memory loss symptoms. The daily struggles include remembering everyday tasks, financials, and in some cases their family. If this awful disease is consuming the life of someone fast and they do not have a Power of Attorney or Health Care Proxy, filing for guardianship and conservatorship is usually our only option.
What is Guardianship?
Guardianship is when someone is appointed by the court to become a guardian of a person who can not make decisions for himself or herself. This person is usually referred to as an incapacitated person or the ward. Filing for guardianship can range in type, depending on the circumstance.
The textbook definition of an incapacitated person is an individual to whom a guardian has been appointed. Not only because of old age but to be considered an incapacitated person, the individual must have a clinically diagnosed condition that results in an inability to receive and evaluate information. They also can't communicate decisions to such an extent that the individual cannot meet essential requirements for physical health, safety, or self-care, even with appropriate technological assistance.
If necessary, the guardianship has the right to take away the incapacitated person’s authority to make decisions about his or her healthcare, support, and welfare. The incapacitated person might retain the right to make some decisions, but not others.
A prime example would be an incapacitated person suffering from Alzheimer’s Disease or Dementia, who doesn’t have the competency to make those decisions for themselves anymore.
Examples of decisions that a guardian can make are medical, where the person will live, and what daily activities to attend. A guardian must take into account the preferences of the incapacitated person and act in the best interest of their wants and needs at all times. The guardian must report to the court annually about the incapacitated person. Learn more about the responsibilities of a Guardian.
What is a Conservatorship?
While a Guardianship deals with the incapacitated person, a conservator deals with their assets. A Conservator makes legal decisions about the person’s property and financial matters. If both guardianship and conservatorship are needed, two separate petitions have to be filed with the court.
The two roles are completely separate from each other, though one person may fulfill both roles.
Any qualified person may be appointed guardian of an incapacitated person, but the court must appoint as guardian the person nominated in the incapacitated person’s most recent durable power of attorney, which is why it is so important to have an accurate Power of Attorney.
For both guardianship and conservatorship, a petition must be filed with the probate court. The process is complicated and requires medical evidence to succeed. The petitioner must state the reason why guardianship or conservatorship is necessary.
The appointment of a conservator may be obtained if the court determines that:
1) The incapacitated person is unable to manage property and business affairs effectively due to a clinically diagnosed impairment.
2) The person has property that will be wasted or dissipated unless management is provided. The support, care, and welfare of the person or those entitled to the person’s protection are necessary to obtain or provide money [see MUPC §5-401 (c)].
A conserve generally has the power to:
- Make gifts.
- Create, revoke, or amend Trusts.
- Make, amend, or revoke the protected person’s Will.
- Distribute or expend income or principal of the estate without court authorization or confirmation for the support, education, care, or benefit of the protected.
To succeed in becoming someone's guardian, you need a specialist by your side. Time and time again I have seen clients try to do it themselves, only to have their petitions denied by the court. Now they are back at square one and have lost a lot of time and money.
Let us do it correctly for you, the first time.
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