What is a guardianship and why would we need one?
A guardianship is a court proceeding where a person is appointed and authorized by a probate court to make medical and other day to day decisions (other than financial) for another person. A full guardian will be responsible for the care, custody and control of the person who can no longer care for themselves. You may find yourself considering filing for guardianship if a family member becomes unable to make medical care decisions, housing decisions, or other decisions about their care. I have often assisted clients in obtaining guardianship to handle a parent’s affairs because the parent suffered a sudden or gradual mental decline because of stroke, dementia or Alzheimers.
What is a conservatorship and why would we need one?
A conservatorship is similarly a court proceeding where a person is appointed and authorized by a probate court to manage the finances for an incapacitated person. While guardians can take limited routine financial actions on behalf of a ward, anything beyond routine daily financial matters would need to be handled by a conservator. While the same person can be appointed to act as guardian and conservator, in some situations it is best for these roles to be given to different people. A loving and attentive adult child may be well suited to act as guardian, but if that person is also financially unsophisticated or irresponsible, they would not be a good choice to act as conservator.
Both guardians and conservators are expected to act with the interests of the ward first and foremost. Once appointed, they are required to file annual reports with the court. Guardians give a detailed report on the care and custody of the ward and conservators give a detailed financial report on all assets and monies coming into and flowing out of the ward’s estate. Family members and other interested parties also receive copies of these reports, and have the opportunity to raise any concerns about management of assets or improper care with the court. If a guardian or conservator is not properly performing their duties, they can be removed and the court can appoint someone else to take over these duties.
Nominating a Guardian and Conservator for your minor children.
A guardian and conservator may also be appointed for minor children if both parents were to predecease them. Most parents with minor children would prefer to plan and guide the process of having a guardian and conservator appointed for their children if it became necessary, rather than leave it up to the courts and the family to try to guess what is best for the children. Unless you nominate persons to be your minor children’s guardian and conservator in your Will, a judge will have to decide who would best serve in those roles.
When you are considering who to nominate to be your minor children’s guardian and conservator it is essential to first have a frank discussion with the person(s) you have in mind. If they have any reservation about acting in this capacity, you can either resolve their concerns or you can elect to nominate someone else who will accept this responsibility.
