If your loved one is having trouble managing her affairs because of a mental or physical disability, consider consulting an elder law attorney about establishing a guardianship, conservatorship, or both. An example of a prime candidate for a guardianship or conservatorship would be an elderly man or woman diagnosed with dementia who needs help managing health care, paying bills, or is being unduly influenced by others. However, there are many other scenarios that call for the help of a guardian or conservator. Contact the office of a local elder law attorney for more information.
Even though the legal definitions vary from state to state, there is a general distinction between the terms, “guardian” and “conservator.” A guardian has a broad scope of responsibility for the interests of the ward, which is the title given to an individual with a guardian. These responsibilities include health care management and involvement in the protected person’s daily affairs. Conservators are appointed mainly for money management, which means they have a less active role in the day-to-day activities of the protected person (an individual with a conservator). In many instances, guardian/conservator is a joint role held by one person or entity, such as a spouse, adult child, or even a non-profit or fiduciary corporation. However, different people may be appointed to these respective roles. In other cases, there may be a conservator but no guardian.
Guardians and conservators must be appointed by the court. The process begins with any person interested in the well-being of the potential ward or protected person hiring an elder law attorney to draft a petition to the court for guardianship or conservatorship. This petition lists the reasons why a guardian or conservator is needed and nominates one or more candidates to fill the role. A Physician Statement from a doctor indicating the potential ward or protected person is unable to manage their medical decisions or finances should be submitted, as well. After the petition and Physician Statement are filed, the court and the attorney’s office schedule a hearing. The potential ward or protected person is entitled to attend, either alone or with her own legal representation. The judge considers many factors when deciding whether somebody needs a guardian or conservator. To name a few, he or she reads the initial petition and Physician Statement, any additional information submitted by a court visitor (who meets with a potential ward and writes a report for the judge), and the testimony that a potential ward or protected person, petitioner, and witnesses provide on the day of the hearing. The judge will then issue a decision and appoint a guardian or conservator if the evidence supports that decision.
Here is something to consider before petitioning for guardianship or conservatorship. Are there already other legal documents in place, such as a Durable Power of Attorney or a Revocable Trust? These types of documents appoint individuals to fill similar roles to guardians and conservators. If there are documents in place, to what extent do they protect the individual? Are the people appointed in the documents working for the best interests of the ward or protected person?
To learn more about whether a guardianship or conservatorship is appropriate, or to find out how a guardianship or conservatorship relate to previously established legal documents, contact the office of an attorney in your state who specializes in elder law. This attorney will be knowledgeable of your state’s specific laws and provide you with the information you need to arrive at a proper decision, one that should not be made without the advice of legal counsel.