Whether through illness, injury, or mental decline, anyone can require a guardian or conservator to care for them if they become mentally or physically incapacitated.
Children automatically qualify as not having the “capacity” to be in charge of their own financial affairs and decisions about their well-being.
And an adult may qualify as not having “capacity” if he or she becomes seriously ill or injured.
Unless you have the proper estate planning in place that names the individual who will be your guardian or conservator in case of illness or injury, a probate judge will be deciding who is your guardian or conservator.
At Holmes Family Law, we can guide you through the often complex and emotional process of the probate court appointing a conservator or guardian for you or for your loved ones.
Seeking appointment of a guardian or conservator for an adult is a serious undertaking.
The law presumes that a person over age 18 can act for themselves unless shown otherwise. As a result, the probate court typically requires extensive proof that a guardian or conservator of an adult is warranted.
The process begins with the interested party filing a petition in court that requests the court declare the adult essentially “incapacitated,” at least from the legal perspective.
Sometimes, these proceedings are initially “ex parte” (in secret) so that a guardian or conservator may be appointed before other interested parties are aware, if there is a concern about other interested parties’ intentions or even the anticipated behavior of the adult at issue.
Many times, guardianship and conservatorship filings can lead to heated disputes between family members or close family friends who may claim they are better suited for the role.
Regardless of who files the petition, guardianship and conservatorship will only be granted if the court determines there is enough evidence to show the person is legally “incapacitated” to the point where they can no longer make legal, financial, or healthcare decisions for themselves.
Although courts typically give preference to a spouse or another close family member, a guardian or conservator does not have to be a relative.
Provided the person seeking appointment is a competent adult, close friend, or any other interested party, they are eligible to serve as long as the judge determines they are best suited for the role.
If a relative or friend is not willing or capable of serving, the court will appoint a third party to serve as guardian or conservator.
Sadly, this can lead to horrible financial and/or physical abuse of the incapacitated so it is best to plan ahead and name a guardian and conservator in your estate planning documents to keep the courts out of the picture entirely.
Depending on the extent of the person’s incapacity, a court-appointed guardian or conservator can be given near complete control over your life.
There are two areas of decision-making where a guardian or conservator has authority: decisions about your well-being and decisions about your finances.
Decisions about well-being include determining your place of residence, your attending physicians, and your medical treatment.
Decisions about your finances include how your home is paid for, what your income is used for, whether to pursue legal actions on your behalf, how to manage your assets, filing your insurance claims, and many other matters.Usually one person is appointed for both roles, but the court can also split the responsibilities among multiple parties.For instance, one person may oversee the financial decisions, while another person handles living arrangements and healthcare.
Moreover, the court often requires the guardian and conservator to file detailed status reports such as financial accountings at regular intervals or whenever important decisions are made, such as when an asset is sold or when you require a substantial expense for your care.
Some of the most common duties of adult guardians and conservators include:
With the huge responsibility and loss of control that comes with guardianship and conservatorship, the process can often feel overwhelming.
The best course of action is to do your estate planning ahead of time to name exactly who is your preferred guardian and conservator so that your family will not have to deal with a courtroom or lawyers in the first place.
If you would like to get ahead of this and avoid the lengthy, stressful and sometimes heartbreaking process of having a probate judge make your decisions for you, give us a call contact us today.