There is nothing more frightening than finding yourself in a situation where a person you care about is badly sick or seriously injured and is no longer able to make or express decisions. When this situation arises, ideally your loved one will have used legal tools to plan ahead for what kinds of medical care he will receive and for how his assets will be managed. Unfortunately, far too many people are not able to make advanced plans and are not prepared if a tragedy suddenly befalls them.
If there is no plan in place in case of serious illness or injury, guardianship and conservatorship are processes necessary for loved ones to take control of an incapacitated person’s affairs. If someone you love has become incapacitated and you want help taking action to get control of their affairs, give us a call. We can provide personalized advice and can answer questions you may have including:
- What is guardianship or conservatorship?
- Why is guardianship or conservatorship needed?
- How can a guardianship lawyer help me?
What is Guardianship or Conservatorship?
Conservatorship and adult guardianship are two terms with a similar meaning. Both a conservatorship and guardianship involve appointing a trusted person to make decisions on behalf of a ward. A ward is a person who is incapacitated physically or mentally and who thus cannot make his or her own decisions.
When someone gets sick or hurt and becomes physically or mentally unable to do things like decide on healthcare or pay bills or communicate desires about life choices, that person can become a ward after a petition to the probate court for guardianship or conservatorship. A hearing will be held to determine if the person is incapacitated and should be declared a ward. After the hearing, if the court identifies incapacity, a guardian or conservator will be appointed.
Typically, the guardian or conservator is a close family member, but this is not always the case. The probate court can determine who should be the guardian or conservator. The person who is selected may not be the person who initially petitioned to have an incapacity declaration made by the court. The person selected will have a strong responsibility to act in the ward’s best interest, and will have to make periodic reports to the court.
A guardian or conservator can be given authority only over economic decisions, such as whether to sell a piece of the ward’s property to generate income to pay for nursing home care. In other cases, a guardian or conservator is also vested with authority to make personal decisions and healthcare choices, such as what kinds of care should be administered.
The person making medical decisions (the conservator of the person) and the person making financial decisions (the conservator of the estate) could be the same person or two different people could be selected.
Why is Guardianship or Conservatorship Needed?
Guardianship or conservatorship is needed because someone has to care for a person who cannot care for himself or herself. There must be an orderly system to determine who will provide this care and who will make necessary decisions for the ward. Without a system in place, families could fight over decisions and inaction could be paralyzing. Without a system, unscrupulous people could take advantage of the incapacitated person, or there could be no one at all to act on the incapacitated person’s behalf.
While guardianship and conservatorship are necessary legal tools to provide for those who must have a caretaker, there are downsides including the court intrusion into personal decisions and the need for guardianship proceedings to be initiated at a time of great stress for families. There are alternatives which eliminate these downsides. For example, if advanced incapacity plans are made that include a power of attorney, advanced directives, and living trusts, then the agent named in the power of attorney can simply take control after an illness or injury. These incapacity planning tools can also provide more insight into what the ward would have wanted, and give the ward more control over his own future.
How can a Guardianship Lawyer Help Me?
A guardianship and conservatorship lawyer can provide assistance if you want to plan ahead to make sure you have a say over what happens to you and your assets. Our legal team helps use power of attorney and other tools to avoid guardianship and conservatorship by naming someone who can automatically take action on your behalf.
We also provide advice and representation during guardianship proceedings as well as to those chosen as guardian or conservator who want to make certain that they are fulfilling their jobs properly.
To find out more about the ways in which a guardianship lawyer can help you be prepared in case incapacity happens, or to respond once incapacity has occurred, give us a call.