Guardianships/Conservatorships

Guardians

A Guardian is a person appointed by the Court to make decisions concerning a minor or an incapacitated person's physical needs (referred to as the ward). An incapacitated person is someone who is physically and/or mentally unable to care for himself/herself.

Once the petition for appointment of a Guardian is filed for an adult, a physician must examine the ward and render a report of his/her findings. In addition, the Court will appoint a Court Representative and a Guardian ad litem. In the case of a minor the Court will only appoint a Guardian ad litem.

Conservators

A Conservator is a person appointed by the Court to manage the assets and financial matters of a minor or an incapacitated person (referred to as a Ward). An incapacitated person is someone who is physically and/or mentally unable to care for himself/herself.

Before the Court appoints a conservator, a physician must examine the ward and render a report of his findings. In addition, the Court will appoint a Court Representative and a Guardian ad litem. In the case of a minor the Court will only appoint a Guardian ad litem. If the petition is granted, the Court will require that the conservator file a bond in an amount determined by the court based on the value of the assets of the ward. The Conservator must keep a separate account of the ward’s monies and must keep a detailed record of all transactions, both incoming and outgoing. The Conservator must file an inventory with the Court within 90 days of appointment, and must file an accounting one year after issuance of Letters and then every three years thereafter or as otherwise ordered by the court.

WHAT IS A GUARDIAN?
The parent of a minor or someone who has been appointed by the court to be responsible for the personal care of an individual.

WHAT IS A WARD?
Legal name for a person for whom a guardian has been appointed.

WHO CAN BE A GUARDIAN FOR AN ADULT?
Any qualified person may be appointed. However, the law establishes the following priorities:

person named in a durable power of attorney
spouse or spouse's nominee
adult child parent or parent's nominee
relative with whom person has lived the prior 6 months
nominee of caretaker of person

WHO CAN BE GUARDIAN FOR A CHILD?
The court may appoint any person who will be in the best interest of the minor. However, if the minor is 14 years old or older, the minor's nominee must be appointed unless the appointment is contrary to the minor's best interest.

Also, a parental nomination has priority.

CAN A PARENT APPOINT A GUARDIAN?
Yes, in a Will a parent may appoint a guardian for a minor child of for an unmarried incapacitated child.

CAN A SPOUSE APPOINT A GUARDIAN?
Yes, in a Will a person may appoint a guardian for his or her incapacitated spouse.

WHAT ARE THE POWERS OF A GUARDIAN?

must assume responsibilities of a parent regarding support, care and education
must become personally acquainted with ward
must take reasonable care of ward's personal effects
must apply available money for current needs or health, support, education and maintenance
must conserve excess money
must report the condition of the ward to the court
may receive limited funds for support of ward
may take custody of ward and establish a home
may compel payment of support
may consent to medical care
may consent to marriage or adoption
may delegate certain responsibilities to the ward for the decision making

[court may limit powers of guardianship]

WHEN DOES A GUARDIANSHIP END?

upon death of ward
upon resignation of the guardian
upon adoption of the minor
upon marriage of the minor
upon minor becoming an adult
when ward's incapacity is terminated

WHAT IS A CONSERVATOR?
A person who is appointed by the court to manage the property of a minor or incapacitated person.

WHO IS AN INCAPACITATED PERSON?
A person who is unable to manage property and business affairs because of....

mental illness
mental deficiency
physical illness
infirmities accompanying advanced age
chronic use of drugs
chronic intoxication
confinement
detention by foreign power
disappearance

WHO CAN SERVE AS A CONSERVATOR?
A family member or any interested person with the priorities as follows:

conservator appointed in another jurisdiction
person selected by incapacitated person
person designated by incapacitated person's power of attorney
spouse
adult child
parent
relative with whom ward has lived last six months
nominee of person caring for incapacitated person
general guardian of sheriff

WHEN CAN A CONSERVATOR BE APPOINTED?
A conservator may be appointed when an incapacitated person:

Is unable to manage property and business affairs; and

(a) has property that will be wasted without proper management; or
(b) funds are needed to support the incapacitated person or one entitled support from the incapacitated person.

WHAT ARE THE POWERS AND DUTIES OF A CONSERVATOR?
Without court authorization the conservator may:

invest and reinvest funds
retain assets
receive additions
acquire undivided interest
deposit funds in financial institutions
acquire property
dispose of personal property
make repairs to building
enter leases up to 5 years
enter mineral leases
grant options up to one year
vote securities
pay assessments
sell or exercise stock options
deposit stock and bonds
consent to reorganization, merger of a business
insure assets
borrow to protect estate
settle claims
pay reasonable annual compensation to conservator
pay taxes and expenses
allocate expenses to income
pay sum of benefit of protected person or his family
employ attorneys, auditors
prosecute or defend claims
execute and deliver appropriate instruments
hold securities

[court may limit powers of conservator]

With prior court authorization the conservator may:

continue or participate in operating business
demolish improvements
dispose of real estate
subdivide, dedicate land
enter leases greater than 5 years
grant an option more than one year
take an option to acquire property

AM I REQUIRED TO HAVE A LAWYER?
The legal complexity of guardianships and conservatorship normally necessitates having an attorney since the Probate Judge cannot advise you of the law or provide you with forms.

WHAT IS THE DIFFERENCE BETWEEN A GUARDIAN AND A CONSERVATOR?
The guardian looks after the person and their welfare while a conservator looks after their estate.

WHAT ARE THE STEPS FOLLOWED IN APPOINTING A GUARDIAN OR CONSERVATOR FOR AN ADULT?

petition files
appointment of a guardian ad litem
examination by physician
appointment of court's representative hearing
jury at hearing if demanded
bond for conservator
order granting petition
letters of guardianship and/or conservatorship

IS A BOND REQUIRED?
Yes, a bond is required for conservatorship unless the bond requirement was waived in a will or power of attorney.

IS AN INVENTORY REQUIRED?
Each conservator must complete an inventory of the estate immediately and file it with the court within 90 days after appointment.

ARE ACCOUNTINGS REQUIRED?
Yes, a conservator must give an accounting to the court at least every three years. The court may order an accounting more frequently. An accounting is also required upon the resignation or removal of the conservator.