Once we reach the age of 18, which is the age of majority in all 50 states, we have complete autonomy to make our own personal and financial decisions (within the bounds of the law, of course). But sometimes we don’t have the cognitive or emotional capacity to make such decisions, whether due a disability we are born with, that we acquire by accident, or that develops through illness. That disability may be temporary or permanent. For instance, someone may have a head injury in an accident that puts him in a coma, and he may recover. Or a stroke victim may recover capacity after an extensive period of therapy. On the other hand, an individual may develop dementia with no chances of recovery, in which case the lack of capacity becomes permanent.

When an individual has been shown to lack legal capacity, a probate court may appoint a guardian or conservator to handle her financial affairs and to make personal and health care decisions. Depending on the state, the person who is appointed may be called a “guardian” or a “conservator.” In many states, but not all, the distinction is that a guardian makes personal and health care decisions and a conservator makes financial and legal decisions. To some extent, the guardian is parallel to an agent under a health care proxy and a conservator fulfills the same functions as an agent under a durable power of attorney. (That’s how we will use the terms in this article.)

How is a Guardian or Conservator Appointed?

While every state has its own laws, typically a guardianship or conservatorship is commenced by the filing of a petition in the probate court for the county where the incapacitated person lives. Often, the petition must be accompanied by an affidavit by a doctor stating that, in her opinion, the individual no longer has capacity to make his own decisions. Then the petitioner must give notice to the individual himself and all next of kin who all have a period of time during which they may file an objection with the court.

If there’s no objection, the appointment usually flies through during a relatively brief court proceeding. However, if anyone does file an objection, then there may be a full trial on the two issues of whether the individual needs a guardian or conservator and whether the person nominated to fill the role or roles is the appropriate person to do so. Often, when an objection is filed, the court will appoint an independent third party to serve in the role on a temporary basis.

How Long Does the Process Take?

The process to get a conservator or guardian appointed can take several months. First, all the papers need to be collected, including the physician’s affidavit. Then, everyone is given notice. Their notice period may be as long as a month. Finally, the petitioner needs to get a court date, the timing of which can depend on how backlogged the court may be.

Because the process takes a long time and the need to make medical or housing decisions or to get control of assets and pay bills may be more immediate, many petitioners file for a temporary appointment at the same time they file for a permanent one. Often the notice period for a temporary appointment is a week instead of a month and the court will provide a date for a hearing more quickly when the petitioner explains the need for a quick appointment. These temporary appointments are usually for a period of three months and may be extended with approval of a court.

In some cases, a court may appoint an emergency guardian or conservator without notice to the individual or next of kin where the petitioner can show extreme risk of harm should no appointment be made. In such cases, notice must be given when the appointment is made and the parties have the right to seek the removal of the appointed guardian or conservator on an expedited basis.

As you can see, the guardianship and conservatorship process can involve a lot of attorney time, especially if it is duplicated, the attorney having to take more or less the same steps for the temporary and permanent appointments.

What are the Powers and Duties of the Guardian and Conservator?

In general, the guardian and conservator step into the shoes of the incapacitated person and can make the financial, legal, health care and personal decisions the individual would make if he were able to do so. However, the state laws may require the guardian or conservator to return to court for approval of certain actions, such as placement in a nursing home, withdrawal of life support, administration of antipsychotic medications, selling a house, or making gifts to children.

In all cases, the guardian or conservator will be held to the highest fiduciary standard to act in the best interest of the incapacitated individual. However, there can be something of a conflict in making decisions, because the surrogate decision maker — the guardian or conservator — is often also supposed to make decisions that the incapacitated individual would make if he were able to do so. To some extent, doing what the incapacitated individual would want is in his best interest. However, sometimes it may not be. He may want to stay home, for instance, but it may be dangerous for him to do so.

Conservators and guardians also have reporting requirements. The guardian may be required to provide an annual report to the probate court about the incapacitated individual’s situation, health, and welfare. This depends on state law. Conservators are universally required to file annual accounts that report the status of the incapacitated individual’s finances, including all property and income received during the year and all expenditures made. The conservator is “on the hook” for the finances, meaning they may be questioned by interested parties, until the court approves the account.

How Can Guardianship and Conservatorship be Avoided?

As you can see, guardianship and conservatorship processes are cumbersome, time-consuming and expensive. They should be avoided if possible. Appropriate estate planning with the appointment of agents under durable powers of attorney, health care proxies, and revocable trusts can go a long way towards avoiding the need for these court proceedings. Unfortunately, they’re not foolproof. A bank or other financial institution may refuse to honor a durable power of attorney. Someone appointed under a health care proxy may make decisions that others feel are not in the best interest of the incapacitated person.

We have a case in our office as I write this that reflects the latter problem. An elderly woman appointed her daughter as her agent under a health care proxy. Her brother, our client, feels that now that his mom is incapacitated, his sister has agreed to her over-medication. Once he expressed his disagreement with her treatment, the daughter removed the mother from the nursing home where she was receiving care, brought her to her own home, and is barring all visits by the brother and his children. The brother’s only remedy may be to seek guardianship despite the existence of a duly-executed health care proxy.

What About Younger People?

Parents are the natural guardians of their minor children, meaning that they can make virtually all medical, personal, financial and legal decisions on their behalf without the involvement of any court. However, in some cases, the parents are unavailable or incapable of acting in their children’s best interests. In such cases, other parties can seek guardianship and conservatorship over the minor children, following more or less the steps described above for seeing care and protection of adults. (Conservatorship is less likely to be necessary for minors since they’re unlikely to have income or assets or need to enter into legal arrangements.)

Related Articles:

Will Guardianship Enable Moving Senior to Assisted Living?

Should I Get Guardianship for Son with Multiple Diagnoses When He Turns 18?

Can Guardian Appoint Himself Under Durable Power of Attorney for Ward?

Can a Guardian Live Out-of-State?