Guardianship and Conservatorship

One of the unfortunate facts of life for the elderly is the possibility of the degeneration of health to the point of mental and physical incapacity. Although the terminology may vary somewhat from one state to another, the concept of guardianship usually refers to the overall care and custody not only of a person who requires protection, but of his or her property as well. Alternately, conservatorship typically refers to the custody and control only of the protected person's money and property. Both guardianship and conservatorship involve and are the result of a court proceeding. They're generally considered to be the least desirable alternatives to using a durable power of attorney for health care (also known as a health care proxy, among other similar titles) or living trust to plan for the eventuality of disability.

The relationship of the guardian or conservator to the person in his or her care (known as the ward) is much like that of a parent to a child. The law does not take lightly the decision to relieve an adult of his or her independence and impose such a relationship. For this reason, the process of obtaining court appointment as a guardian or conservator usually involves considerable time and expense.

Typically, an office in the local county courthouse handles matters of guardianship; oftentimes, it's a function of the probate court. The first step in the process is to file a petition to the court requesting to be appointed guardian on someone's behalf. In some areas the hiring of an attorney is not a legal requirement, but it's usually advisable nonetheless.

The next step is the one that is the invariable source for the unavoidable delays that occur during the process. Although most people are motivated by honorable motives, the court must decide whether a full guardianship is necessary or if it can be limited to the ward's person or to his property alone (the latter case, again, being a conservatorship). The court will generally require a hearing, at which time an evaluation of the disabled person by medical and/or mental-health professionals must be presented. The petitioner seeking guardianship is often the one who must arrange and pay for these examinations and reports.

If the guardianship petition (or conservatorship, depending on the court's judgment) is granted, in most jurisdictions the court will also appoint a lawyer to represent the disabled person and require periodic reports from the guardian. This is a further safeguard to ensure that no competent person is forced into a guardianship situation because he (or she) is too weak or intimidated to voice his objection. The court must also determine who is the most appropriate and capable person to serve as guardian or conservator, and what sort of authority that person should be granted. Once the guardian (or conservator) has been appointed, he or she must make periodic reports to the court about the care that is being given to the ward and how the ward's money and assets are being managed.