Do you need a guardianship or a conservatorship?

By: Thomas T. Woods

Matters of guardianship & conservatorship come up in everyday life more often than you might imagine. If you have children under the age of 18 or an adult child with mental deficiencies or difficulties, you need a will that names a guardian or conservatorship. If an accident or illness renders you or your spouse mentally incapacitated, the healthy spouse or your adult child will need to create a conservatorship for you.

Deeming the guardian to care for your minor child simply requires writing your will and including in it the name of the person you would like to serve as guardian if something should happen to both you and your spouse. Typically, the guardian is another family member, but you could name a friend, attorney, or trust. If you and your spouse die while the child remains a minor, the child becomes a “ward” and the guardian becomes the individual who makes decisions for their care, education, shelter, and management of any monies left to them. If you had established a trust, the guardian typically would administer the trust until the appointed age of maturity at which the child or ward would assume its management.

The word conservatorship refers to a process used for those past the age of 18 years. A conservator manages the same decisions as a guardian would for someone under 18, but in a situation where a person over the age of 18 has some legal incapacity that limits their abilities to manage their own affairs and finance. Some states require a state court legal proceeding to declare a person mentally incapacitated and to appoint a conservator. Once declared, they too are referred to in legal documents as a “ward.”

The Petition

Your attorney files in state court a petition questioning the named individual’s mental capacity. Any interested person may file, but typically it’s a family member, close friend, or a professional advisor who does so.

The judge assigned to the case appoints a committee comprised of knowledgeable physicians, nurses, social workers, etc. to examine the individual. Some states have the attorney of the petitioner assemble the committee. The judge appoints an attorney for the individual whose mental capacity is questioned. The attorney and individual meet before the process.  The attorney reads the petition to him or her and explains the court proceeding and process to him/her.

The Exams

Each member of the committee meets with the individual and conducts an examination. From these exams, they create a written report on the person’s mental state and physical health and condition. This gets filed with the court. The individual’s attorney also prepares a written report describing their meeting with the individual which gets filed with the court. It must include the attorney’s opinion of whether the person understood the petition and meeting.

The Hearing

At a hearing, both sides will argue their case for or against naming a conservator. The judge may make inquiries of the attorneys or committee members who attend. The individual may attend but does not have to do so if their health precludes it.

The judge determines one of three findings – competent, partially incapacitated, or totally incapacitated. If either of the latter findings comes to fruition, the judge determines the least restrictive way to assist the incapacitated person. The conservator may only pay the person’s bills for them or manage their investments in cases of partial incapacitation. If completely incapacitated, the conservator assumes all legal rights of the person.

 

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