Conservatorships and Guardianships
We regularly work with clients to establish conservatorship and/or guardianships.What is the Difference Between a Conservatorship and a Guardianship?
*Persons with disabilities and minors often have a need for the appointment of a conservator or guardian.
* A guardianship is available for individuals under the age of 18 (who have not otherwise been emancipated) where a Court determines the minor needs a guardian to provide partial or full supervision, protection and assistance of the person or property, or both, of the minor.
* A conservatorship is available for adult individuals (18 years or older) where a Court determines an individual lacks the capacity to make decisions in one or more areas of life. The Court may appoint a conservator to exercise the decision-making rights and duties of the person with a disability in the areas where the individual lacks capacity.
*Conservators are often beneficial for aging individuals but may also be helpful where an individual is temporarily disabled.
*A guardian/conservator may be appointed to make decisions regarding the individual’s health care, living arrangements, finances and any other rights a Court deems should be transferred from the individual to the guardian/conservator.What is the Process for Obtaining a Conservatorship or Guardianship?
- Any person having knowledge of the circumstances may file a petition for the appointment of a conservator with the appropriate Court.
- The Court may appoint a guardian ad litem to impartially investigate the facts and make recommendations to the Court. A guardian ad litem serves as an agent of the Court and is not an advocate for any party.
- The individual is entitled to have an attorney ad litem appointed, if desired, to advocate for the individual’s interests.
- The individual must be evaluated by a physician (or where appropriate a psychologist or senior psychological examiner) after the filing of the petition or have been evaluated not more than 90 days prior to the filing of the petition.
- After a hearing on the petition, the court will determine whether the individual is a “disabled person” and whether the appointment of a conservator is the “least restrictive alternative” to protect the disabled person’s property and/or health.
- If the Court determines a conservator is necessary, the Court will consider the following persons to appoint as conservator (in this order of preference):
- Person or persons designated in a writing signed by the alleged person with a disability;
- Spouse of the person with a disability;
- Any child of the person with a disability;
- Closest relative or relatives of the person with a disability;
- A district public guardian; and
- Other person or persons.
- The Court will enter an order naming a conservator and setting forth the powers to be removed from the individual and transferred to the conservator.
- The conservator must manage the individual’s property pursuant to a Court-approved property management plan and may not sell the individual’s property without Court approval.
- Any person having knowledge of the circumstances may file a petition for the appointment of a guardian with the appropriate court.
- The Court may appoint a guardian ad litem to investigate the facts and make recommendations to the Court. The minor is also entitled to have an attorney ad litem, if desired, to advocate for the minor’s interests.
- After a hearing, the Court will determine whether a guardianship is in the best interests of the minor.
- If the Court determines a guardianship is appropriate, the Court will consider the following persons to appoint as guardian of the minor (in this order of preference):
- Parent or parents of the minor;
- Person designated by the parent or parents in a will or other written document;
- Adult siblings of the minor;
- Closest relative of the minor; and
- Other persons.
- The Court will enter an order setting forth the court-approved expenditures on behalf of the minor and the approved management of the minor’s property.
- The guardian may not make any other expenditures without Court approval and may not sell the property of the minor without Court approval except in a few limited situations.
- A guardianship terminates when a minor reaches the age of 18 unless a Court has previously determined the minor to be disabled, in which case the guardian automatically continues as conservator of the individual.
- Any interested person, including the guardian, may petition the Court to continue the guardianship for a period of time not to extend beyond the individual’s 25th birthday. Such a petition may not be filed more than 90 days before the minor reaches 18 years of age and not later than the filing of the preliminary final accounting by the guardian. The petitioner has the burden to demonstrate why the guardianship should continue.
What is a Durable Power of Attorney?
- A durable power of attorney (“DPOA”) allows someone to legally act on behalf of another even when incapacitated.
- A DPOA must be in writing, signed by the principal, and contain words showing the intent of the principal that the authority conferred shall be exercisable, notwithstanding the principal's subsequent disability or incapacity.
- The principal must be considered legally competent at the time he or she signs the DPOA.
- A DPOA may be effective the date it is signed or may defer the effective date to the date the principal is determined to be disabled or incapacitated (a “springing POA”). It can be revoked at any time by either party.
*A principal may nominate in a DPOA an individual to serve as conservator if protective proceedings for the principal's person or estate are thereafter commenced. The Court will appoint a fiduciary in accordance with the principal's most recent nomination in a DPOA unless there is good cause to do otherwise or the person nominated in the DPOA is disqualified to serve.
*If there is concern that an individual lacks capacity or may make decisions that are harmful despite a DPOA, a conservatorship may be a better option for the individual.
What is Durable Power of Attorney for Health Care?
A durable power of attorney for health care (“DPOA-HC”) authorizes a designated person to make health care decisions for another. To be valid, it must:
- specifically authorize the named person, known as the “attorney in fact”, to make health care decisions;
- be in writing, signed by the principal, and contain the date of its execution; and
- be attested to by a notary public or by 2 witnesses (at least one of whom is disinterested).
*Witnesses must be competent adults, at least one of whom is not related to the principal by blood, marriage, or adoption and would not be entitled to any portion of the principal’s estate.
*Treating health care providers and operators of treating health care institutions cannot be designated as an attorney in fact in a DPOA-HC.