Guardianship and Conservatorship

When a person is unable to make decisions for himself, whether health care or financial decisions, someone needs to be able to assume responsibility for that person's affairs. If no one has legal authority to act, then the courts must be asked to appoint someone to assist. 

A guardian is appointed by a court to make personal and health care decisions for a person who is incapacitated, whether because of physical or mental disability. Guardians have the same rights, powers, duties and responsibilities over their wards as parents have over their minor children except that guardians do not have to use their own money to support the wards. 

A Conservator is appointed by a court to handle the financial affairs of a person unable to do so for himself. The conservator takes possession of all the protected person's assets and must protect, invest and use them for the protected person's benefit. 

A person may need a guardian or a conservator or both and the same person can be appointed in both capacities. 

What You Need To Know 

Guardians and conservators are often appointed for older persons when illness or other disability requires such intervention. 

Guardians and conservators have great power. A guardian determines where the ward will live, the medical treatment that the ward will or will not receive, whom the ward may associate with, whether the ward may vote or marry and all the other aspects of the ward's life. 

Conservators take control of all of the assets of the protected person and direct that any income be paid to the conservator. The protected person cannot sell his own assets or determine how they will be invested without the consent of the conservator. Whether the protected person has any spending money is the conservator's decision. 

Courts do not casually appoint guardians and conservators. A person must be given notice of a petition asking the court to act, has the right to be present at a hearing on the petition, the right to present and cross-examine witnesses and, in most states, the right to a court appointed attorney if unable to afford to hire one. There is a right to have accountings and reports from guardians and conservators and a right to have the court periodically review the need for continuation of the guardianship or conservatorship. 

Guardianship and conservatorship, when properly used, are good ways to provide continuing care and management to persons who need such help. The continuing involvement of the court provides added protection to everyone involved. 

Where To Go For Help 

If a family member needs to have a guardian or conservator appointed, you should contact an attorney who is familiar with this area of the law so that the necessary papers can be filed with the appropriate court and so that the correct procedures can be followed. The attorney can also advise you of various alternatives to guardianship or conservatorship that may be available. Such choices may include durable powers of attorney, living trusts or other options. 

If someone has filed a petition asking for the appointment of a guardian or conservator for you, you should contact an attorney (if one has not been appointed for you or if you do not want the appointed attorney). This attorney can advise you as to the procedures that are involved and the choices available to you. You will have to decide whether to oppose the petition, propose alternative solutions or oppose the appointment of the particular person in favor of one of your choice. If you do nothing it is likely the petition will be granted.