Guardianships and Conservatorships

The law presumes that every adult is capable of making his or her own decisions, unless a court determines otherwise. If an adult becomes incapable of making responsible decisions due to a mental disability, a court has the power to appoint a substitute decision maker called a "guardian" (who in some states is called a "conservator" or a similar term). Guardianship is a court-supervised legal relationship between a competent adult (the "guardian") and a person who because of incapacity is no longer able to take care of his or her own affairs (the "ward").

A guardian can be authorized to make legal, financial and health care decisions for the ward. Depending on the terms of the guardianship and state practices, the guardian may or may not have to seek court approval for various decisions. In many states, a person appointed only to handle finances is called a "conservator."

Oftentimes, incapacitated individuals can make responsible decisions in some areas of their lives but not others. In such cases, the court may give the guardian decision-making power over only those areas in which the incapacitated person is unable to make responsible decisions (a "limited guardianship").

Incapacity

Laws defining when a person requires a guardian vary from state to state. In some states, the standards are different depending on whether a complete guardianship or a conservatorship over finances only is being sought. However, a person is generally considered to be in need of guardianship when he or she shows a lack of capacity to make responsible decisions.

A person can't be declared incompetent simply because he or she makes irresponsible or foolish decisions. The person must show a lack the capacity to make sound decisions. For example, a person may not be declared incompetent simply because he or she spends money in ways that seem odd to someone else. Also, a developmental disability or mental illness is not, by itself, enough to declare a person incompetent.

The Guardianship Process

In most states, anyone interested in a proposed ward's well-being can request a guardianship. Usually, a lawyer is hired to file a petition for a hearing in the probate court in the proposed ward's county of residence. Protections for the proposed ward vary greatly with from state to state, with some simply requiring that notice of the proceeding be provided and others requiring the proposed ward's presence at the hearing. The proposed ward is usually entitled to legal representation at the hearing, and the court will appoint a lawyer if the allegedly incapacitated person cannot afford one.

At the hearing, the court attempts to determine if the proposed ward is incapacitated and, if so, to what extent the individual requires assistance. If a determination is made that the proposed ward is indeed incapacitated, the court then decides if the person seeking the role of guardian will be a responsible guardian.

A guardian can be any competent adult -- the ward's spouse, another family member, a friend, a neighbor or a professional guardian (an unrelated person who has received special training). A competent individual may nominate a proposed guardian through a durable power of attorney in case she ever needs a guardian.

The guardian need not be a person at all -- it can be a non-profit agency or a public or private corporation. If the court finds a person is incapacitated and a suitable guardian can't be found, courts in many states can appoint a public guardian, a publicly financed agency that serves this purpose.

In naming someone to serve as a guardian, courts give first consideration to those who play a significant role in the ward's life -- people who are both aware of and sensitive to the ward's needs and preferences. If two individuals wish to share guardianship duties, courts can name co-guardians.

Reporting Requirements

The guardian of the property:

• Inventories the ward's property
• Invests the ward's funds so that they can be used for the ward's support
• Files regular, detailed accountings with the court
• Petitions for court approval for certain financial transactions
• Files an annual accounting of the ward's finances and the ward's physical or mental status.
• Offers proof that adequate residential arrangements for the ward have been made, that sufficient health care and treatment has been provided , and that available educational and training programs have been made available, as needed.

Guardians who cannot prove that they have adequately cared for the ward may be removed and replaced by another guardian.

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