Guardianship And Conservatorship

A guardianship is an important legal role. The person who is a legal guardian is typically appointed by a probate court. A guardianship empowers the court-appointed guardian to make personal, medical, and financial decisions on behalf of another person who is referred to as the “ward”.

In most guardianship situations, the ward is either a child or an individual with severe mental or physical disabilities that prevent them from making decisions on their own behalf. In some states, a guardianship is called a “conservatorship”.

For example, typically a parent's status as the legal guardian of their child ends when the child turns 18. However, a child may be incapable of caring for himself or herself because of a disability. In this situation, the parent might seek to extend their guardianship of their child into the child's adulthood.

Another example would be an elderly parent who becomes mentally incapacitated and unable to make personal, medical and financial decisions. The adult child could seek to become the guardian of their elderly parent in this situation.

Guardianship is a matter of state law. Therefore, if a person feels the need to seek a guardianship for a disabled child, incapacitated elderly parent, or other person, it would be helpful to consult a family lawyer who is familiar with the laws regarding guardianship in the state where the person lives.

Different Types of Guardianships

There are different types of guardianships. In some guardianships, a guardian has full decision-making power over the ward. In others the guardian is limited to making only financial or medical decisions.

The different types of guardianships vary from state to state, but common types of guardianships include:

• Full guardianships in which the guardian has full decision-making powers over the ward, because the ward is incapable of making any personal, financial or healthcare decisions;

• Limited guardianships that are granted by the court when the ward is capable of making some of their own decisions about their personal care, but might need help from a guardian for making more complex decisions related to finances, healthcare or life changes;

• Co-guardianships that are granted when the court appoints two guardians to make decisions on behalf of the ward. This helps prevent any abuse of power by one of the guardians;

• Short-term or temporary guardianships can be granted by the court when the ward is facing a time-limited emergency situation, or is only temporarily incapable of making decisions on their own behalf;

• Guardianships of an estate in which a guardian's main responsibility is managing the ward's assets, and making financial decisions on behalf of the ward; and

• Guardian ad litem in which a guardian is appointed by the court for the sole purpose of representing the ward's interests in some kind of legal proceeding. 

How Does The Court Determine Who Is Fit To Be A Guardian?

As previously mentioned, the court considers several factors when determining whether to grant legal guardian status to a potential guardian. Some of these factors include but may not be limited to:

• The relationship of the potential guardian and the ward, such as whether they are related or are close friends;

• The nature of the ward's condition, such as whether they are a minor child, elderly, disabled, etc.;

• Whether or not a formal guardianship letter exists and is signed by the ward, as this letter may contain instructions or preferences;

• If the guardianship is emergency or temporary in nature;

• The financial background of the guardian; and

• The mental, physical, and emotional stability of the guardian.

When a guardianship is contested, the court may revisit these factors to determine whether their initial assessment still holds true. An analysis of these factors can help the court determine guardian fitness in the event of a guardianship legal dispute. Once again, guardianship is most often challenged when new evidence arises that the current legal guardian is unfit to care for their ward.

When Would a Legal Guardian Be Appointed for a Child?

Courts may appoint an adult who is not the parent of a minor child to act as a guardian for the child. Courts assign guardians for minor children in a number of situations, including:

• When parents have abandoned a minor,
• When a minor's parents have died; or
• When a minor's parents are incapable of providing proper care for the minor.

A person who could serve as a legal guardian might be a family friend, family member, or other person the court thinks will act in the minor's best interest. The legal guardian of a minor might be granted physical custody of the minor, or they may act only as a financial guardian who exercises control over the minor's property.

In certain circumstances, an adult may be appointed by the court to serve as a guardian ad litem. A guardian ad litem is an adult who represents a minor in some kind of legal proceeding.

Guardianship Eligibility Factors Considered for Adult Wards

Courts appoint guardians to protect the interests of adults who are not capable of caring for themselves because of some kind of incapacity. A guardianship will be set up when a court decides that a person is in need of protection because of severe disabilities, hospitalization, or other impairments that affect the person's ability to make decisions for themselves.

Because a guardianship deprives an individual of their personal right to manage themselves and their affairs, certain steps must be taken before a guardian is appointed.

A person has a right to receive notice of a guardianship proceeding. A person has a right to be represented by a lawyer in a guardianship proceeding. During the proceeding, a person has the right to attend, confront witnesses and present evidence.

If the court appoints a guardian, the guardian is encouraged to consider the ward's wishes and give the ward as much autonomy as possible. As above, guardianship of an elderly or incapacitated individual may entail guardianship of the person, guardianship of the person's estate, or both.

Duties and Responsibilities of a Guardian

The duties and responsibilities of a guardian depend on the type of guardianship established by the court. There are several kinds of guardianships including:

• Guardianship of the person — A guardianship of the person requires the guardian to make decisions regarding the care and support of the ward. The guardian may have to give consent to and monitor medical treatment, arrange professional services, monitor living conditions, or make end-of-life decisions and preparations. When making these decisions, the guardian is expected to take into consideration the ward's wishes, as well as their physical and financial needs.

• Guardianship of the estate — A guardianship of the estate requires the guardian to manage the ward's personal property. The guardian must preserve and protect assets, and might have to distribute income or obtain appraisals of property. The guardian has to report to the court regularly regarding the status of the ward's estate.

• A guardian of the estate or property of a ward must act as a fiduciary. This means that the guardian must act honestly and faithfully to preserve the ward's property and to use the assets for the benefit and welfare of the ward and never for the benefit of the guardian.

• It is an important responsibility to serve as the guardian of another person or of their property. A guardian must be willing and able to manage the responsibility successfully.

How Long Can A Guardianship Last?

• The length of a guardianship depends on the probate court's assessment of the best interests of the ward. If the ward is a child, the guardianship will typically end when the child turns 18 years old.

• At any point during a guardianship, particularly in limited guardianship situations, the ward may petition the probate court to end the guardianship if the ward believes that having a guardian is no longer necessary to serve their best interests.

• A guardianship will end if the court determines that a guardianship is no longer necessary, or when the ward dies. Some types of guardianships, such as short-term guardianships, are limited to a specific time period from the beginning of the appointment and will end automatically unless renewed. 

What is an Automatic Termination Of Guardianship?

One of the easiest ways to terminate guardianship is to show that the ward meets requirements for automatic termination. Even though the guardianship may terminate automatically in these instances, you may need to file a petition or other document with the court in order to make sure that the orders are appropriately adjusted to reflect the new situation.

Automatic Termination of Guardianship: Death

The guardian's obligations terminate with the death of the ward. However, the guardian may be legally required to give an accounting of the ward's finances before the court (if the guardian was responsible for the ward's finances).

Automatic Termination of Guardianship: Child Reaches Adulthood

Once the ward turns 18, they are usually considered an adult. Once they reach adulthood, the guardianship automatically terminates.

Automatic Termination of Guardianship: Adoption, Marriage, Military Service

In many states, the ward's adoption, or marriage will be grounds for termination of the guardianship. Additionally, if the ward enters military service, this will also be grounds for termination.

Automatic Termination of Guardianship: Child is Emancipated

In the case of the guardianship of a child, the child may apply for emancipation. Emancipation means that the child has petitioned the court to be ruled an adult—if the court grants the petition, the child will be legally an adult, even if they have not reached the age of 18. If the child is emancipated, the guardianship will be terminated.

Automatic Termination of Guardianship: Child Requests for Termination

If the parents of a minor child want their child to live with them again, they can seek to terminate the guardianship. However, they will need to show evidence to the court that the termination of the guardianship will be beneficial to the child. For example, the parents may need to show:

• That they can provide the child a stable home;
• That they have income that can support the child; and
• That they are “fit” to resume taking care of the child.

If the child was removed from the parents for reasons related to the parents' substance abuse, they may need to show that they have successfully completed a rehabilitation program as part of the fitness requirement.

Guardian Requesting to Terminate the Guardianship

A guardian could also request to terminate a guardianship by filing a petition with the court to resign their position as guardian. Again, to terminate a guardianship in this way, the guardian must file a petition with the court, announcing their intent to resign.

The guardian may need to show that the resignation of guardianship is in the best interests of the ward. Some factors that may influence the decision that resignation is in the best interests of the ward may include:

• One or both parents (in the case of minor children) are able to resume their parental responsibilities;
• The guardian can no longer serve effectively due to age, illness, or infirmity;
• The resignation will allow financial gain for the ward;
• The guardian and the ward disagree with respect to the ward's care—and the conflict is detrimental to the ward (likely to occur in the case of minor children); and/or
• An increase in the burden of the guardianship that should have been accounted for during the original guardianship appointment.

The court may proceed in a number of ways, including terminating the guardianship, appointing another guardian, or (in the case of minor children) placing the ward in foster care.

Contested Guardianship

A contested guardianship refers to a situation in which the guardian status of a person is challenged, or called into question. This most commonly occurs when the legal guardian is not fulfilling their role as guardian. An example of this would be when the guardian fails to provide basic living necessities for their ward. Contested guardianship is commonly connected with neglect or abuse. When challenging or contesting a guardianship arrangement, the lawsuit could involve multiple parties challenging the previous court order appointing the guardian.

If a guardianship is contested, the persons contesting the guardianship may need to show evidence that the guardian is unfit or unable to perform their obligations. This may include evidence that the guardian misused money that was intended for the ward's welfare, that the guardian was abusive, or that the guardian is unable to fulfill their obligations because of substance abuse or incapacitation.

In this case, it is in your best interests to talk to an experienced attorney if you are dealing with a contested guardianship. In very serious cases, you may need to file a lawsuit for damages if the guardian has violated their duty of care to the ward. 

Competing Guardianship Applications

Competing guardianship applications describe a situation in which more than one person simultaneously applies to be ward's guardian. An example of this would be an elderly person needing a guardian, and both of their two children apply to be appointed their parent's legal guardian.

In these situations the court must still analyze all parties involved in order to determine which guardian would best serve the ward's interests. In cases involving multiple siblings applying to be their parent's legal guardian, their similar backgrounds could make the decision a close one. Each party would need to provide the court evidence to support their claim as to why they would be the most suitable guardian.

The situation may be further complicated if there are issues involving the termination of an existing guardianship. Most guardianships are temporary and will automatically terminate when the circumstances requiring the guardianship have cured. An example of this would be if the minor ward turns eighteen, or when the ward dies. A guardian may also request to have the guardianship terminated by filing a petition with the court to resign from their position. An interested potential guardian may push for terminating an existing guardianship as another way to contest the guardianship.

Guardianship Legal Disputes

The process of obtaining a guardianship will likely vary by state. However, typically the first step is filing a petition for guardianship appointment with the probate court in the county in which the ward lives. Most probate courts require that a hearing be held and attended by the potential guardian, as well as the ward. At such a hearing, the judge will evaluate the case and listen to all interested parties. After the hearing, the judge will then decide which party, if any, should receive legal guardian status.

As previously mentioned, the most common legal dispute regarding guardianship is the basic question of who should serve as the ward's legal guardian. Disputes may also arise over the ward's estate, or when child support payments are involved. It is imperative that the ward's best interests be held above all else, and that any legal guardian carries out their duties in accordance with those interests.

Conservator

A conservatorship is a court process in which a judge appoints an individual to make decisions on behalf of a physically or mentally incapacitated individual. The individual whom a judge appoints during a conservatorship proceeding is known as the “conservator”. In some jurisdictions, this process may be referred to as a legal guardianship. Thus, a conservator may also be called the individual's legal guardian.

The most common reason as to why a court would need to appoint a conservator is to make decisions on behalf of a person who is no longer able to do so themselves. For example, if a person has a serious illness or injury that causes them to lapse into a temporary or long-term coma.

In general, there are two main types of conservatorships: a conservatorship of the person and a conservatorship of the estate. In some cases, a conservator may even handle the legal duties and obligations that are required for both. The following provides a basic description of what a conservator may have to do under each of these types of conservatorships:

• Conservator duties for a conservatorship of the person: A conservator who is appointed to take care of an incapacitated individual will be given the authority to make decisions on the individual's behalf. This may involve a wide range of duties, which could extend from making specific decisions about medical treatments to decisions that affect the individual's daily life like what to eat or where to live.

• Conservator duties for a conservatorship of the estate: On the other hand, a conservator who is appointed to take care of an estate will be authorized to oversee and make decisions regarding an incapacitated individual's financial affairs. For instance, a conservator appointed to this type of conservatorship may be authorized to sell property, sign a contract, invest funds, or purchase insurance on behalf of the individual.

• Conservator duties for both: If a conservator is appointed to serve as if they were assigned to both types of conservatorships, then they will be responsible for handling an incapacitated individual's medical and financial matters. Depending on what the individual needs, the conservator may have other duties as well like overseeing legal disputes.

• In addition, there may be other kinds of conservatorships available—each of which may have their own separate requirements. Whether or not a different type of conservatorship exists will largely depend on the laws of a particular state as well as on the needs of the individual who requires a conservator or legal guardian to represent them.

To learn more about the nature of conservatorships and the legal responsibilities required of conservators, you should speak to a local estate attorney for further advice. An attorney will not only be able to guide you through the process of becoming a conservator, but can also help a person to make changes to or to terminate an existing conservatorship.

Assets Protection From Mismanagement

Unfortunately, there are some instances where a conservator may make mistakes or might intentionally mismanage an individual's affairs. It is not uncommon for a dispute to arise over such matters since a conservator is often granted a wide range of authority as well as the power to make personal, legal, and financial decisions on behalf of an incapacitated individual.

Some common examples of legal disputes that may occur in connection with a conservatorship and an offending conservator include:

• When a conservator fails to perform their legal duties properly or at all;
• If a conservator misuses the individual's funds, such as for personal gain, unsound investments, or by commingling them with their own assets;
• When a conservator commits fraud or misrepresents the individual's intentions (e.g., forging their name on documents without their consent or pretending to be them for some personal benefits); and/or
• If a conservator violates the specific guidelines of a conservatorship arrangement or conservatorship laws.

As is evident from the above information, it is important that the individual put a number of safeguards in place to protect themselves and their assets from being mismanaged by their appointed conservator. Some examples of protective measures that may be used to protect a person's assets from mismanagement by a conservator include:

• If possible, an individual or a trusted family member should select and appoint a person to become the conservator. While a court will certainly try to make sure that the person they appoint is suitable to serve as a conservator and will often designate a close family member to hold the position, this may not always be possible.

• If the individual or another trusted relative is worried about the person whom the court appointed, then they should either object immediately or recommend that a different person serve as the conservator before the conservatorship proceedings even begin.

In most cases, a conservator is required to purchase a surety bond. The bond acts very similar to how an insurance policy would work in the event that someone's finances were mismanaged or lost. If a situation arises where the individual's funds have been mismanaged by their conservator, someone will need to alert the court. If the court also agrees that the value of the individual's estate has been reduced or lost and that the actions of the conservator were to blame for this mishap, then the court may order the conservator to reimburse the individual for the loss. The court may either do this by ordering the conservator to pay damages and/or by requesting the conservator forfeit the surety bond that they purchased.

Fortunately, it should be noted that most states require that a conservator file a plan of action with the court that originally appointed them and to periodically provide the court updates about the conservatorship arrangement. In instances where a conservator needs to make a potentially life-altering or expensive decision, such as to sell a house or make serious medical decisions, the conservator may need to get approval from the court before they take any further actions.

In addition, the individual being cared for or another interested party may petition for removal of a conservator. However, there must be a valid reason to remove the conservator and the petitioning parties must provide sufficient evidence that supports this reason. If the court finds there are grounds for removal, then they will order the conservator to be replaced and appoint a new person to serve as the individual's conservator.

Finally, while many of the safeguards mentioned in the above list provide significant protections against the mismanagement of assets, they unfortunately are not always foolproof. Thus, if a situation occurs where it seems like a conservator is mishandling the individual's financial affairs, then it is crucial that the individual or an interested party reach out to an attorney as soon as possible.

Should I Hire A Lawyer?

While guardianship might sound simple on its face (one person agreeing to take care of another), it can have some complex legal issues involved. If you have any questions about the arrangements, you may want to talk to a guardianship lawyer about the process. An experienced guardianship lawyer can review court documents and explain your rights and responsibilities during a guardianship. If you need to terminate the guardianship, your lawyer can also prepare and file a petition with the court to start the process, and help you navigate the nuances of the legal system.

Being assigned a conservator to oversee your affairs and to make decisions on your behalf can be a stressful experience. Thus, if you or a loved one is placed under a conservatorship in which you feel you should object to the choice of conservator, want to contest the arrangement, and/or are already in one and believe your affairs are being mismanaged, then you should a local estate attorney to represent you immediately. An estate attorney who has experience in handling issues concerning conservatorships can make sure that your conservator is performing their legal duties properly and that they are not violating any conservatorship laws. If there is a dispute over the individual who is serving as the conservator or your conservator has caused you to lose money, your attorney can file a lawsuit against them and can also help you to recover damages for those losses.