Trusts and Estates

Guardianships and Conservatorships

Adults are assumed to have the capability to make decisions for themselves in all areas of their lives. However, there are times when a person lacks this ability, and some people never have this capability. State law provides an alternate decision maker to act when someone can't make decisions for themselves. These court-appointed decision makers are called guardians and conservators. The person needing the guardian's help is called the ward.

Guardianship, Types and Terms

Depending on your state laws, you may see different terms used to describe guardian roles and duties. "Guardian" generally describes the person with power to make decisions about the ward's person. "Conservatorship" refers to the person with responsibility for a ward's property and finances. These roles go by other names, including "guardian of the person," and "guardian of property" or "guardian of the estate."

There are different guardianship types, each filling a need. Separate guardians can serve to take care of a person, or his property. A ward's needs might not be the same in both areas; a person may be able to care for himself, but can't manage his property. Other guardian types include:

  • Limited guardianship - powers are limited because the ward can make some, but not all, decisions for himself
  • Plenary guardianship - guardian has broad power to make all decisions for a ward's personal care and finances
  • Temporary guardianship - used for emergencies and someone immediate need. The guardian's role is limited to a short time, such as 60 days, depending on state law
  • Successor guardianship - this is the replacement guardian if someone resigns or can't continue serving due to death or illness
  • Standby guardianship - allows a court to provide a backup guardian, so there's no gap in caring for a ward's needs
  • Testamentary guardianship - a guardian can name a successor in his or her will, say to care for an adult disabled child. The court needs to approve the successor, but usually follows the will unless it finds the nominee isn't fit to serve
  • Short-term guardianship - the law may allow a guardian to name an alternate guardian to fill in for him for a short time. Court approval isn't needed, and covers temporary situations where the guardian can't serve

Guardianship: Process and Procedure

Incapacity Is Required

While state laws vary, there needs to be a reason for guardianship: a person's incapacity. Incapacity means the lack of ability for responsible decision making for yourself or your needs. It's not enough to show someone makes bad decisions, rather, decisions are unsound. Showing a person is disabled or has a mental illness isn't enough, either.

Guardianship Petition

The process begins with filing a petition for guardianship with the court; in many states, it's the probate court. Usually you must file in the county where the person or intended ward lives. The probate court typically has forms and directions available, but many people choose to use a lawyer for the initial process. A hearing is scheduled and the court decides whether to appoint a guardian.

The person who is the subject of the petition is given notice of the hearing, and has rights, depending on state law. The person's rights include notice and may include the right to attend the hearing, challenge the petition and to have a lawyer. The law may allow the court to appoint a guardian ad litem to represent the person's interests. If the petition is challenged, there may be rights to an independent medical evaluation and a jury trial on the issues.

The Hearing and Appointing a Guardian

The court considers the petition at a hearing, and then decides if the person has an incapacity and needs a guardian, what the specific needs are and appoints a guardian. At the hearing, the court carefully assesses the petition and evidence, such as the medical forms and reports on the ward's condition and needs. Issues of incapacity aren't taken lightly.

If the court finds incapacity, and the scope of the ward's needs, it then decides whether the person seeking the role or nominated as guardian is qualified. Generally, a guardian must be an adult, at least 18 years old, and be competent himself. State law may exclude those who have criminal records or aren't US citizens.

Usual guardian candidates are the ward's close family members or friends. Professional guardians and entities, such as a corporation can serve as guardians, too. State government provides public guardians if no one else can serve.

Courts give weight to your wishes if you've nominated someone as guardian in a durable power of attorney, and to candidates who are close to you. Courts recognize those close to you often know your wishes and preferences best, and will take the best care of you and your affairs. Co-guardians can be named, for example a spouse and an adult child or your adult children.

Guardianship Powers and Duties

The court issues "letters of office" after appointing a guardian. This is the certified proof of the guardian's appointment and powers. Generally, they're sent to the guardian or his lawyer. Depending on the case, a guardian may have to file a bond with the court.

The guardian has a number of administrative duties. These range from making an inventory of the ward's property, managing assets and further dealings with probate court. The guardian must file periodic accountings with the court, report on the ward's condition, and may need court approval for some decisions, such as major financial transactions.

Finally, guardians can resign, or may be removed for cause. The guardianship continues for the ward's life, or until the court ends it.

Questions for Your Attorney

  • My children are seeking guardianship and I disagree. Can I hire a lawyer and recover costs and fees from them if the court rejects their petition?
  • Is reckless spending a basis for incapacity? What if my mother's frivolous spending habits are a real threat to her financial security?
  • Can interested family members or friends contest a guardian's actions?

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