The ward is the person that has been declared incompetent by the court. The basic standard is that the ward is not able to make or communicate significant decisions regarding their health and well-being (for a guardian) or finances (for a conservator). Note that prior to the granting of the guardianship or conservatorship this person is usually called the "proposed ward". Just to keep things short and simple, this guide will simply use the term "ward".
The guardian is the person appointed by the court to manage the health and well-being of the ward. Guardians are responsible for making sure the ward has adequate medical attention, an acceptable place to live, adequate food and social interactions, etc.
The conservator is the person appointed by the court to manage the finances of the ward. Conservators handle all of the ward's financial matters, such as paying the bills, filing taxes, determining a budget for the ward, taking care of the ward's investments, etc.
Filing the Petition
Petitions for guardianship or conservatorship are filed in the probate court of the county where the ward resides. A single petition can be filed for both a guardianship and a conservatorship. To file the petition you must **EITHER** have one signature (the person filing the petition) and an affidavit from a doctor who has seen the ward within 10 days of filing the petition **OR** two people must sign the petition as co-petitioners.
The probate court will charge a filing fee to file the petition. Typically this fee runs between $400 - $600 depending upon the county and what is required in the petition. The petitioner(s) may hire an attorney to represent them and file the petition. The fees charged by the attorney vary widely, but will generally be between $600 to $1,500. Some attorneys will handle guardianships on a flat fee basis and some will only handle them on an hourly basis. IF ... note the big IF ... the court grants a guardianship or a conservatorship, the ward's estate can reimburse the filing fees and attorney fees.
After the petition is filed...
Once the petition is filed, the court will usually appoint a social worker or doctor to interview the ward and file a report with the court. The report will usually be fairly short - 1 or 2 pages - and will either recommend a guardian/conservator be appointed or state that the ward is not sufficiently impaired to require a guardian/conservator. The court will also appoint an attorney to represent the ward. The cost of the social worker and court appointed attorney is usually included in the filing fees paid to the court.
The court will serve the petition on the ward (usually by sheriff) and notify the ward's children, parents, and potentially siblings.
At the hearing...
The person(s) who filed the petition has the burden of proof to show that the ward is incapable of making or communicate significant decisions either as to their well-being or their finances. Typically the petitioner's attorney will start the case by calling the petitioner to the stand and asking questions about the ward's diagnosis, ability to handle daily life functions, etc. The petitioner can also call other witnesses, such as family members or care givers, to further document the need. The ward's court appointed attorney can cross examine all witnesses. The ward's attorney may call the ward as a witness. In addition, the judge may step in and ask questions. Generally speaking, guardianship hearings are not as formal as normal court hearings or trials. The probate courts understand the tensions involved. However, the judge is being asked to strip somebody of their constitutional rights, and they take that very seriously.
After the hearing...
If a guardianship or conservatorship is awarded, the guardian/conservator will be sworn in and given "letters" of guardianship/conservatorship. Note that if the ward has assets or income other than social security the conservator will be required to post a bond before the letters will be issued. The probate court will give you a list of approved bonding companies. Generally speaking, the cost of the bond will be based upon the conservator's credit history among other factors. As a ***GENERAL*** point of reference, most of the $300,000 - $450,000 bonds I have obtained in the past year cost about $650 - $700 per year. The ward's estate can pay for the cost of the bond.
Guardians are required to file personal status reports with the probate court. Conservators are required to file financial status reports with the probate court. These reports must be filed within 60 days of the court order granting the petition and then every year thereafter within 60 days of the anniversary of the court order.
The probate court will have forms that you can fill out for these reports. The guardian's personal status report generally is fairly simple. The conservator's financial report can be significantly more complex based upon the assets, income, and expenses of the ward.
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