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Guardianship and conservatorship questions may arise when an elder relative or older friend shows signs of incapacity or cannot handle personal cares or financial matters. A guardian or conservator is only appointed if a judge determines the person, frequently referred to as a ward, is incapacitated or incompetent, depending on the law of the state. The guardian or conservator could be a spouse, child, friend or other interested party. To determine whether a guardianship or conservatorship is appropriate in your situation, contact an experienced elder law attorney in your area.
Depending on the state, guardians and conservators may have different roles. In states with both guardians and conservators, guardians' duties typically involve providing for the physical and mental health of ward while conservators typically handle the ward's financial matters. But some states use the term "guardian" to describe both of these roles, and some states may use the term "conservator." Regardless of the term used, if the judge determines the ward is incapacitated, the judge must also determine the specific duties of the guardian or conservator, including ensuring appropriate physical or medical care for the ward, managing finances, representing the ward in lawsuits and other matters. In many states, the ward will retain the right to vote unless the court specifically orders otherwise.
The ward may retain the right to control many aspects of his or her life, depending on the circumstances. For example, the ward may be able handle personal cares, but unable to manage finances, or vice versa. In those cases, the guardian or conservator only will be appointed to handle matters that the ward cannot handle. While exercising their powers, guardians and conservators are bound to employ reasonable care. But generally, guardians and conservators are not legally liable to the ward or to third parties unless they engage in willful misconduct or gross negligence.
To initiate a guardianship or conservatorship, an interested party must file a petition to the court. The petition will state the petitioner's relationship to the prospective ward. The petition also will state facts that show that the proposed ward is incapacitated, and the need for a guardian. The petition should detail the ward's property and assets. The judge will examine the petition and hold a hearing that the proposed ward must attend. After the hearing, the judge will decide if the proposed ward needs a guardian, conservator or both. Wards have the right to appeal a guardianship or conservatorship determination.
Once appointed, a guardian or conservator must be discharged by the judge to end the guardianship or conservatorship. Reasons for discharge include the death of the ward or conservatee, the ward's return to capacity or the guardian or conservator's inability to fulfill his or her duties.
Friends and family members must confront difficult questions and emotions if they believe that a loved one can no longer care for himself or herself. The role of guardian or conservator is very complicated and requires dedication. A skilled elder law attorney can help you find answers to guardianship and conservatorship questions, guide you through the process of guardianship or conservatorship and comply with the court's orders.
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