The decline of a family member’s health can be one of the most difficult emotional challenges that a family will face. If that ailing family member hasn’t adequately planned for such an event, the burden rests on the family to step in and care for them. Without proper legal authority, this can be difficult.
Fortunately, the court provides a process for obtaining the necessary authority to care for the needs of an ailing family member. There are two different types of authority that can be sought through either individual or combined proceedings: guardianships or conservatorships.
What is Guardianship?
Guardianship provides authority to make personal decisions on behalf of the ward the person for whom a guardian is appointed. A court-appointed guardian has the power to make decisions on behalf of a ward, similar to a parent over a child; however, the guardian is shielded from certain liabilities on behalf of a ward’s actions.
A guardianship allows the guardian to:
- make provisions for the ward’s care;
- approve living arrangements, including, if necessary, assisted living facilities; and
- consent to medical and professional care for the ward.
This is a non-exhaustive list of the powers of a guardian. A guardian is also given the general duty and power to maintain and care for a ward’s everyday needs.
In order to have a guardian appointed, the petitioner must show:
(a) that the ward is incapacitated,
(b) the appointment is necessary to care for the ward, and
(c) there are not less restrictive means of providing for the ward. A satisfactory showing of incapacity must be attested to by a physician, psychologist or registered nurse. For inpatient mental health authority, there are additional requirements.
Any competent person can be appointed as guardian over a ward. While there is a statutory scheme setting forth priority of appointment, the ultimate goal of the court is to appoint the most appropriate person to care for the needs of the ward.
What is Conservatorship?
Conservatorship provides authority to manage the financial affairs of the protected person-the person for whom a conservator is appointed. At times the protected person may also be referred to as the ward. The conservator has the same power to manage the protected person’s estate and affairs as the protected person would have if not under disability, although a conservator doesn’t have the power to make a will or certain gifts. A conservator has a duty to act as a fiduciary and observe the applicable standard of care. In a conservatorship, the conservator is required to account annually to the court regarding the protected person’s estate. The conservator may also be required to post a bond in an amount determined by the value of the protected person’s estate.
In a conservatorship, the petitioner must show that the person is in need of protection or that the person is unable to effectively manage their finances. Similar to guardianship proceedings, this is done through an appropriate medical or psychological evaluation, a report of which will be submitted to the court. While still substantial, the burden to prove a need for protection is less than the burden to prove incapacity. A person can have capacity and still need a conservatorship.
Similar to the guardianship proceedings, there is a statutory scheme setting forth priority of appointment, but the ultimate goal remains to appoint the most appropriate person to care for the needs of the protected person.
Who is the Petitioner?
The person seeking the requisite authority to care for the ward and/or protected person-must determine whether both a guardian and conservator is required. Furthermore, the petitioner must determine whether they can meet their burden of proof in seeking such appointment. The petitioner need not be the nominated guardian or conservator, but more often than not, it is usually the same person. The petitioner must also consider the cost and burden in each appointment. To determine the appropriate authority in each individual situation, the petitioner should seek the proper legal advice.