Both conservatorships and guardianships are designed to protect individuals with diminished capacity, whether due to age, mental challenges, or disabilities.
Guardianships and conservatorships are often confused with powers of attorney. In a guardianship or conservatorship, a court legally removes the fundamental rights of an impaired person who lacks the capacity to make “significant responsible decisions” for him or herself. A guardianship relates to health and safety; a conservatorship applies to financial affairs. Once these rights are removed, the Court then assigns a third party to exercise those rights on behalf of the impaired person.
In contrast, a power of attorney is a contract that allows someone, called an agent or attorney-in-fact, to make decisions on behalf of another person, called the principal. The difference between the guardianship and a power of attorney is that a power of attorney does not remove the right of the principal to act independently. For example, I can give my husband the ability to make transactions on my bank account in a power of attorney. However, I still retain the right to make transactions on that account. Thus, while a power of attorney can be helpful in acting for the benefit of someone who is impaired, the document will not remove the right of that impaired person to act for him or herself.
It’s important to note that guardianship and conservatorship is not appropriate simply because someone makes bad decisions. Everyone legally has the right to make a poor decision. Guardianships and conservatorships become necessary when a person receives information and is unable to process or act on that information. Often, guardianships and conservatorships are referred to as protective proceedings because they are intended to do just that: protect an individual.
How the Legal Process Works
The process of pursuing a conservatorship or guardianship begins when a family member, care manager, medical professional, or other person close to the situation observes that an individual can no longer make sound decisions for him or herself. Either no one is able to act on that individual’s behalf, or the individual refuses the help and places him or herself in harm’s way. Two adults with personal knowledge of the individual’s incapacity file a petition with the Probate Court asking the appoint a guardian and/or conservator for the proposed Ward.
If the petition has been pled sufficiently, the Probate Court will order an independent evaluation of the Ward, which may take place at the Ward’s house or at a designated location. The evaluation is filed with the Court, and if it provides sufficient evidence, the Court will order a hearing. Some courts also require that the proposed guardian and conservator submit to a criminal background check.
If the parties seeking the protective proceedings satisfy their burden of proof at the hearing, the Court will appoint a guardian and or conservator and issue letters of guardianship and letters of conservatorship. The conservator must post a bond for the value of the Ward’s annual income and for the value of the Ward’s financial accounts and valuable property.
Within 60 days of receiving the letters of appointment, the guardian and conservator must file reports with the Court advising the Court of the Ward’s personal and financial status and any plans with respect to the Ward for the upcoming 12 months. These reports are due annually within 60 days after the anniversary of the issuance of the letters of appointment.
The process for protective proceedings varies from state to state, and these legal procedure can get tricky when there is family conflict, divorce, or misconduct. Solid legal advice can help families navigate thorny situations related to the Ward.
For more details about the benefits of guardianships and conservatorships, watch the complete interview. In addition, Weinberg Elder Law’s website features detailed information about conservatorship and guardianships.