Guardianship & Conservatorship
What is guardianship?
Guardianship is a court-established legal relationship between a competent adult (known as "Guardian", "Limited Guardian", or those with financial authority only, known as "Conservator" or "Limited Conservator") and the legally disabled person (known as the "Ward").
When is an adult considered "legally disabled"?
An adult is considered to be legally disabled if a court has ruled in a disability hearing that the person cannot take care of his/her personal needs or manage his/her finances.
At the same time the court declares a person to be disabled, it appoints a guardian or a conservator to help with personal or financial needs in the areas the disabled person can't manage alone.
In deciding this at the disability hearing, the court will determine if the person can handle their affairs, e.g., can they manage their money, their physical health and safety, etc. If the person needs help in some areas, but not others, the court may appoint a limited guardian or a conservator.
When is guardianship pursued?
A guardianship is typically sought when someone believes that an individual is not capable of managing his/her financial and/or personal affairs and an effective power of attorney was not signed while the person still had the mental capacity to do so.
What is involved in pursuing guardianship?
To pursue guardianship, among other steps, the following is needed:
- A petition for a determination of partial disability or disability and the appointment of a limited guardian, guardian, limited conservator or conservator must be filed by any interested person (usually a family member).
- The petition must be accompanied by a verified application of the person desiring appointment as limited guardian, guardian, limited conservator or conservator.
- Unless an appearance has been entered by an attorney on behalf of the person sought to be found to be legally disabled (known as the "Respondent"), the Court appoints legal counsel for the Respondent.
- The Judge orders a physician, psychologist, and social worker (known as the "interdisciplinary team") to evaluate the Respondent. Each member of the team submits a report to the Court detailing the nature and extent of the Respondent's disability, if any, and whether such disability warrants the appointment of a fiduciary.
What are a guardian's duties?
A guardian should focus on the legally disabled adult's well-being. The goal of guardianship is to protect the personal, civil, and human rights of the person with the disability and to encourage them to make their own decisions and act on their own behalf. Depending upon the specific rights the court takes
away, the guardian's duties may include:
- Arranging for a place for the ward to live in the least restrictive environment
- Arranging for educational, social, vocational, and rehabilitation services
- Arranging for other services the ward needs to meet his needs
- Consenting to medical treatment for the ward
- Managing the ward's finances, unless the court has appointed a separate
- Carrying out only those duties the court requires
Filing Annual Reports:
A guardian must report to the court every year (on the anniversary of their appointment date by the Judge) about how the ward is doing. The report includes information on where the ward is living, in what programs the ward is involved, and whether guardianship continues to be needed.
Filing Periodic Accountings:
- If the guardian is responsible for the ward's finances, the guardian must file an inventory within 60 days of being appointed, setting forth the ward's assets and income.
- In addition, the guardian must submit a financial report to the court every two years. The financial report is an accounting of what money was received by the ward (for instance, the Social Security check) and how it was distributed. Forms for these reports are available from the District Court.
What affect does guardianship have upon a person found to be legally disabled?
Many rights can be lost through guardianship, so it should not be undertaken lightly. A person who is adjudged wholly disabled to manage his/her personal affairs and finances resources loses their right to:
- Make a Will
- Rent, own, or sell property
- Execute documents
- Enter into contractual relationships
- Determine living arrangements
- Consent to medical procedures
- Obtain a driver's license
A person who is adjudged partially disabled retains all legal and civil rights except those which have been designated by the Court as legal disabilities or which have been specifically granted to the limited guardian or limited conservator.
What is a conservatorship?
A conservator is a type of guardian who manages finances only. The court may appoint a conservator alone or in combination with a guardian to handle a legally disabled person's financial affairs.
What are the conservator's duties?
- After the conservator's appointment, within 60 days they must file an inventory of the person's property with the court.
- They must then file a report every two years stating how much money and property they have received as the conservator and how it is being used on behalf of the ward.
- Depending on the amount of the Respondent's assets, a conservator will need to obtain a surety bond (unless the Judge waives same).