When an adult is incapacitated or unable to make sound decisions, a judge can appoint a guardian or conservator to step in and assist them. Most of the time this responsibility falls on a family member, but there are cases where the court can appoint a professional or public guardian instead. Generally speaking, a guardian is appointed to assist with all aspects of an incapacitated adult’s affairs, and a conservator is appointed to administer their finances.
Guardianship
A guardian is tasked with handling an incapacitated adult’s medical, financial, and personal affairs. Some common responsibilities include:
- Paying the adult’s bills
- Prudently managing the adult’s assets and investments
- Selling property and liquidating assets to cover medical and living expenses
- Filing the adult’s tax returns
- Determining where the adult will live
- Monitoring the adult’s living situation to ensure proper care
- Accessing the adult’s medical records
- Consulting with the adult’s doctors and make important medical decisions regarding treatment and care
Conservatorship
A conservator’s job is to handle an incapacitated adult’s finances. This typically includes accessing bank accounts, managing investments, paying bills, collecting debts, filing taxes, and handling the adult’s general cash flow. While both a conservator and a guardian are expected to act in the best interests of the adult, a conservator has a fiduciary duty to prudently manage the adult’s assets. They will be held accountable for ensuring the adult’s investments match their income needs, risk tolerance, and return requirements. As such, it’s a good idea for conservators to enlist the assistance of a financial advisor to make sure they are fulfilling their fiduciary responsibility.
How to Appoint a Guardian or Conservator
Considering guardianship and conservatorship constitute a significant breach of the ward’s right to privacy, the appointment process is rightfully strict—though it doesn’t have to be difficult. With proper planning, it can be a fairly simple process.
If you would like to be appointed guardian or conservator, the first thing you’ll need to do is to file a petition with the court in the county where the adult resides. When a hearing is granted, the court will instruct you to serve notice to the adult, family members, and applicable agencies.
Before the hearing, you’ll need to get a certificate of incapacity from the adult’s doctor or psychologist, and submit the certificate to the court. The judge’s decision will be largely based on this certificate, so the hearing cannot commence without it. If the adult cannot attend the hearing, their doctor should indicate this on the certificate of incapacity. In such cases, someone will need to advise the adult of their rights, and fill out an Admonishment of Rights form with their responses. The advising party will need to indicate the following:
- That the adult has been notified that the petitioning party has filed for guardianship
- The adult’s response to the guardianship appointment request
- The adult’s preference as to who should be appointed as their guardian
- That the adult has been informed they have the right to appear for the hearing in person or by video conference
If nobody contests the guardianship or your appointment, the guardianship hearing may only take a few minutes. If there is an objection, you’ll need to defend your reasoning for the guardianship, and you’ll need to demonstrate that you are the best candidate for the responsibility of guardianship.
Emergency Guardianship
Guardianship can take anywhere from 1 – 4 months. If the incapacitated adult is at risk of death or bodily harm, or if they need medical treatment that isn’t urgent but should not be procrastinated, a judge can appoint an emergency guardian. The adult will need to be served notice at least 24 hours in advance of the emergency hearing, unless a judge waives the requirement due to the urgency of the situation. Once granted, an emergency guardian will be appointed for 6 days. If the guardian needs authorization beyond the initial 6 days, they’ll need to submit additional evidence that an emergency guardian is necessary until a permanent guardian cab be appointed.
Consider Your Alternatives
Advance planning is always the better option. If the adult in question still has a sound mind, they can grant you a durable power of attorneyof their own free will rather than forcing a guardianship hearing. A power of attorney grants you (the attorney-in-fact) the authority to act as their legal agent. Depending on how the power of attorney is drafted, the individual (known in this case as the principal) can grant the same authority that one would receive through a court-appointed guardianship or conservatorship. The principal can broadly authorize full control over their financial, medical, and personal needs, or they can restrict access to certain responsibilities and circumstances.
How to Get a Durable Power of Attorney
The best way to initiate a power of attorney is to begin with an open conversation. Nobody likes to relinquish control over their assets and affairs, so you’re likely to encounter some resistance if the power of attorney wasn’t their idea. Take the time to explain why you are concerned, what aspects of their life could be made easier by granting someone a power of attorney, and how you can best serve them as their agent. Let them know that a power of attorney doesn’t take away their control or decision-making abilities—it simply allows you to assist them in areas they need help (like adding an authorized user on a bank account). People are usually open to granting a power of attorney once they understand the rights they will retain and how the agreement will make their life easier.
When both parties are on the same page, schedule an appointment with an attorney. The attorney will be able to answer all of your questions, put both parties’ minds at ease, and draft a power of attorney that is tailored to your unique situation. A do-it-yourself power of attorney is legal, and in many cases is perfectly acceptable, but the generic forms that you find online may miss some of the specific qualities that you need. When the document is ready, the principal will need a witness to attest that they are of a sound mind, and both parties will need to sign in the presence of a notary public.
Call Guardianship and Conservatorship Attorney Colton Johnston at (480)467-4313 to discuss your case today.