What Is a Guardianship or Conservatorship and When Is It Necessary? The purpose of a guardianship or conservatorship is to ensure that continuing care is provided for you if you are unable to take care of yourself or your property. An illness or disability alone is not sufficient reason for guardianship or conservatorship. A guardianship or conservatorship will be imposed only if you are determined to be incapacitated and in need of a guardian or conservator. The granting of guardianship or conservatorship is done through a Living Probate proceeding. During this public proceeding, testimony is given as to your state of ability and the court. determines whether or not you are incompetent and in need of a guardian and/or conservator. Although it varies from state to state, Living Probate usually involves these steps: • Papers are filed in court to declare that you are legally incompetent. • Interested parties will be notified. • A notice of the hearing will be published. • A hearing will take place. Before appointing a guardian or conservator, the Judge must be persuaded that: • You are incapacitated; • You need someone to make personal decisions for you and/or manage your affairs; and • The proposed guardian or conservator is suitable, willing, and able. What Is the Difference Between a Guardian and a Conservator? A guardian is an individual, organization, or State agency appointed by the Probate Court to make decisions on your behalf. Once the court appoints a guardian for you, you are then known as a “ward." The Probate Court may give the guardian the authority to make decisions about you, such as: • Where you will live; • Whether you go into a facility; and • What medical treatment you will receive. A conservator, on the other hand is an individual, corporation, or State agency appointed by the court to protect and manage your money and property. The person under conservatorship is called a "protected person." Some people are able to make responsible decisions in some but not all areas of their lives. In such situations, a guardianship or conservatorship will be limited by the Probate Court to only those areas in which you do not have the capacity to make responsible decisions. For example: • A guardianship could be limited to providing consent for medical treatment; or • The Probate Court could limit a conservatorship by specifically withholding from a conservator the power to sell certain assets. The same person can be both guardian and conservator or there may be a different person for each responsibility. Any suitable, willing and able adult or institution, or certain State agencies, may be appointed guardian or conservator. The Probate Court will make the final decision based on your best interests.
Estate Planning Attorney