Sometimes it may be necessary to pursue a conservatorship or guardianship for a person who is not able to make or communicate decisions. Unlike a power of attorney, an individual appointed as a conservator or guardian can make decisions on behalf of the person being protected and those decisions cannot be overridden by the protected person. In a sense, in order to shield the protected person or the community from harm, the protected person’s freedom regarding the specific decisions being overseen by the court or legal document has been taken away.
A conservator is an individual or corporation appointed by a court to manage the estate, property, and/or other business affairs of an individual whom the court has determined is unable to do so for himself or herself. The individual who is being protected is called the “protected person.”
Guardianship provides for the care of someone who is not able to care for himself or herself. The court may appoint a guardian if there is clear and convincing evidence that the person is incapacitated and that he or she requires continuing care or supervision. The individual who is being watched over on behalf of the court through the guardian is called the “ward.”
Distinguishing Between Them
Conservatorship has to do with the management of things that the ward or protected person owns or has had control over. Guardianship has to do with the management of the life actions and needs of the ward or protected person. In many states, guardianship and conservatorship are all wrapped together under one responsibility. In other states, these two responsibilities are clearly delineated. In addition, some states are quite specific about various types of court-appointed representatives such as executors of wills and licensed fiduciaries who may, in some states, play the same role as a conservator. Each state has its own rules and procedures and may not even use names such as guardianship or conservatorship. Those states that have adopted the Uniform Probate Code in its entirety use the definitions and functions as outlined above. Other states that have adopted portions of the unified code may recognize the two functions of conservatorship and guardianship or they may not.
Another concept used in certain states is the “representative payee.” This is an arrangement that is less all-inclusive than a conservator in overseeing the financial obligations of a protected person. The representative payee may only be given certain rights for using income from the protected person to manage the bank account and to pay bills. Other rights over the property of the protected person may not be extended to a representative payee.
Guardians, conservators or other fiduciary agents acting on behalf of an incapacitated person or someone who is dead, can be nominated by a will or other document or by involved financial institutions or by trusted family members. The court will ultimately appoint whomever it feels is the best-qualified person or persons.
Sometimes, families or individual children are too eager to pursue guardianship or conservatorship or other arrangements without consideration of the consequences. For example, it is common for family members to disagree as to the degree of incapacitation of a loved one. An individual family member going against the wishes of the others in the family and petitioning the court may create great tension and dispute within the family. Sometimes, a child or other close relative is only interested in his or her personal gain by being a guardian or conservator. The needs of the person being protected or the needs of other family members are disregarded. Finally, a family in dispute, seeking a guardianship or conservatorship from the court, can cause severe infighting among family members as well as permanent rifts in communication and future relationships.
This article is meant to be utilized as a general guideline for guardianships and conservatorships. Nothing in this blog is intended to create an attorney-client relationship or to provide legal advice on which you should rely without talking to your own retained attorney first. If you have questions about your particular legal situation, you should contact a legal professional.
Mark Turner can be reached by phone at (440) 571-7773 or by email at [email protected].