Guardianships and Conservatorships (contested and uncontested)
Sometimes, it becomes necessary to take control of an adult’s ability to make his or her own personal and financial decisions. The individual may be disabled due to an injury, illness or developmental disability and unable to understand simple financial tasks such as check-writing. Navigating the court processes that allow someone to act on behalf of family members or friends, called “Guardianship”, is time-consuming and complex. Securing legal advice and assistance is an important component of success in these efforts.
Guardianship is appropriate when an individual (the Proposed Ward) lacks the ability to make or communicate significant responsible decisions about his or her health or safety (guardianship) or his or her financial affairs (conservatorship). In Guardianship, the courts remove powers and essentially return the individual to the status of a minor. This does not mean that the Proposed Ward has made bad decisions; all adults have the right to make good and bad decisions, regardless of age. Instead, the Court focuses on the Proposed Ward’s ability to process information that he or she receives. Are they able to understand and evaluate the facts as presented? Can they weigh the pros and cons of a decision? Do they understand and appreciate the consequences of their decision? If the answer to one or more of these questions is “no”, then some form of Guardianship is likely appropriate.
What is guardianship?
Guardianship, formerly known as the guardian of the person, addresses the ability to make personal decisions. In this situation, the Court looks to “guard” the person. A person under guardianship loses the right to marry, to decide their residence or domicile, and to consent to medical procedures, among other things.
The Guardianship process is actually fairly straight-forward. Each of the three steps in the process is designed to protect the Proposed Ward’s rights. First, the Probate Court, having exclusive jurisdiction in Guardianship matters, reviews the Guardianship petition to ensure that the parties seeking Guardianship, the Petitioners, have sufficient facts to show why a Guardianship is needed. Second, if the petition is adequate, the Probate Court orders an evaluation of the Proposed Ward by a professional such as a psychologist or social worker. If the evaluation supports that a Proposed Ward needs a Guardian, then the matter proceeds to the third step – a hearing.
What is conservatorship?
Conservatorship, formerly known as guardian of the property, addresses the ability to make financial decisions. As the name suggests, the Court seeks to “conserve” the individual’s assets. A person under a conservatorship loses a wide variety of rights including the right to make, modify or terminate contracts, to buy or sell property, to bring or defend a lawsuit, and to conduct business transactions. Essentially, the Proposed Ward forfeits all financial decisions to the conservator.
Guardianship and conservatorship are distinct processes, but the Probate Court takes both very seriously as both involve removing rights from an individual. The Probate Court offers a series of protections for the Proposed Ward throughout and after the Guardianship process.
Guardianship also has its limits. While Guardianship is the final option for incapacity planning, it is by no means a solution to every problem. The Proposed Ward retains certain fundamental rights. Guardianship cannot force medical treatment of the Proposed Ward, remove voting rights, remove the ability to write a Will, or interfere with the Proposed Ward’s relationships with family and friends.
The best way to find out if guardianship or conservatorship is appropriate for your circumstance is to talk with us about it. Sometimes, Guardianship is the right course of action and, other times, another kind of estate planning is necessary. We help our clients plan for the challenges that aging and incapacity can bring.