Guardianship and Conservatorship
June 3, 2008
What happens when a relative cannot care for himself or herself, either personally or in his/her money matters?
If the person is an adult, and he or she is cooperative, a trusted family member can often get him or her the kind of help he or she needs. That might include moving to an assisted living facility or even a nursing home. But what do you do when the person is not cooperative?
One step that can be taken in this situation is to obtain a guardianship or conservatorship.
Guardianship: A guardianship is a court supervised arrangement whereby a trusted person, called a guardian, makes decisions regarding the health, safety, and welfare of the protected person.
Conservatorship: A conservatorship is similar to a guardianship in that it is a court supervised arrangement, but the trusted person is called a conservator, and the decisions made regard the finances of the protected person.
A guardianship or conservatorship can only be established by the court. The court grants this arrangement only after having a hearing. Both the protected person and his/her family are given ample notice of the hearing. If the protected person agrees to the arrangement, the court will grant it without taking testimony. However, if the protected person objects to the arrangement, a contested hearing will be scheduled. At this hearing, the court will hear testimony from both sides.
Anyone can petition for a guardianship or conservatorship. The court requires a higher level of proof to establish this than the ordinary civil case. In an ordinary civil case, the plaintiff wins if he/she establishes his case by a “preponderance of the evidence.” This is usually translated into “more likely than not.” In a guardianship or conservatorship proceeding, the court requires “clear and convincing” evidence. The reason for this is that a guardianship proceeding takes away civil rights of the protected person.
Usually, a guardianship or conservatorship is commenced with a Physician’s Statement. This is a simple form signed by a physician, who has treated the protected person, stating that the protected person is in need of a guardian or conservator.
Once a petition is filed, the court will appoint a Court Visitor. This person will meet with the protected person, review the petition with him/her, and complete a form indicating the protected person’s responses. This form is filed with the court.
If the Court appoints a guardian, he/she must report to the court each year. The Court does not require in court testimony but requires the filing of a Statement of Well Being, which informs the court of the condition of the protected person. The guardian also has to give the protected person notice that he/she has the right to petition the court to terminate the guardianship. The guardian files a form indicating that he/she has given this notice to the protected person.
If the court appoints a conservator, he/she must file an annual account to account for all money coming in and going out in a year’s time. He/she must also advise the protected person that he/she can petition the court to terminate the conservatorship and give the court proof that this was done.
Please contact us if you have questions about a guardianship or conservatorship.