Living Trust Attorney Ltd

Guardians and conservators are appointed to protect an incapacitated person. An incapacitated person is someone who cannot make decisions for her/himself or makes decisions that might be harmful. When it is deemed that a person needs a guardian or conservator the court is petitioned (by family or Social Services most commonly) and a judge decides if the person is truly incapacitated.

Only a judge can appoint a conservator or guardian and the process can be long, emotional, difficult, expensive, humiliating, and/or unsuccessful. A guardian is in charge of a person’s personal affairs; often phrased as being guardian of the body. A conservator is responsible for managing a person’s financial affairs. Some types of guardians and conservators are:

• Emergency or Temporary Guardian. Appointed for a limited period of time for emergencies such as a person too sick to make medical decisions for themselves

• Limited Guardian. Appointed for a specific matter such as a person who is able to care for her/himself on a daily basis but is unable to make medical decisions

• Limited Conservator. Appointed for a specific financial matter such as a person who is able to pay their ordinary expenses receives an inheritance which s/he is unable to manage.

• Standby Guardian. Appointed to become the guardian when the individual who is currently responsible for providing care dies such as the expected death of a parent caring for an incapacitated child.

Guardianship is necessary when

• a person has difficulty making decisions and s/he might come to some harm as a result or is unable to provide for her/his basic needs as a result; and
• a person refuses to accept assistance or support services to protect her/him from harm, or
• help that is being provided is not enough to protect the person from harm, or
• a person has not previously appointed an attorney-in-fact (power of attorney), or the individual appointed refuses to act or is not acting in the person’s best interests; and
• the person’s health and will being are in imminent danger, and decisions about medical treatment, placement, and/or finances must be made

Guardianship proceedings should be considered only as a last resort and can be avoided by proper estate planning.

GUARDIANSHIP