Guardianship / Conservatorship
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Guardianship is the legal process by which a guardian is appointed to care for and make personal and healthcare decisions on behalf of another person. A conservatorship is similar to a guardianship, except a conservatorship deals with finances rather than personal and healthcare issues. These processes are very involved, as they take away the legal rights of the person for whom the guardian or conservator has been appointed.
Careful estate planning can generally prevent the need for guardianship and conservatorship, but sometimes it just cannot be avoided.
If you find yourself needing to consider conservatorship for a loved one, it is important to hire a conservatorship attorney near you to help you understand the process, give you expert advice on carrying out your duties and prepare the required court documentation.
What Is the Difference Between a Guardian and a Conservator?
While both guardianships and conservatorships are legal relationships that give one party the right to make decisions for another, guardians are appointed to care for people who are considered incapacitated, and conservators are appointed to protect people’s financial interests. Guardianship versus conservatorship is an important distinction to understand.
Some reasons a person might be considered incapaciated and need a guardian are permanent disability or illness. A guardian may also have the authority to make healthcare decisions, or a healthcare proxy may be in place for those kinds of responsibilities.
The level of decision-making ability that remains with the incapacitated person varies case-by-case, depending on the kind of guardianship. In a limited guardianship, common rights that remain with the incapacitated person include the the right to vote or decide where to live.
Is Guardianship Better Than Power of Attorney?
In most cases, a power of attorney is preferred. Powers of attorney allow individuals to maintain more of their civil liberties and do not require court supervision, meaning they are less time-consuming, less expensive and, for many people, less stressful.
Sometimes, court supervision may be preferred. In those cases, the estate holder may prefer to plan for guardianship rather than power of attorney.
Is a Legal Guardian Financially Responsible?
Guardians do not have the right to spend their ward’s income or distribute assets, and they are not personally responsible for the expenses of the incapacitated person. When a guardian is appointed, it is generally expected that the estate of the person who is considered incapaciated will provide the funding for care. In some cases, a guardian may need to work alongside a conservator of the estate.
Guardianship duties for an incapacitated person do include:
1. Acting in the best interest of the incapacitated person
2. Considering the ward’s desires and personal values
3. Filing proper documentation when needed
4. Informing the courts of changes
5. Petitioning to end the guardianship if and when needed
6. Requesting expanded guardianship if and when needed
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In a conservatorship, the protected person is no longer able to make decisions about their property and assets. In the event that the person becomes unable to manage their finances and has no durable powers of attorney, a conservatorship may be necessary.
Who Needs a Conservatorship?
Conservatorships are usually established for people who are incapacitated because of a coma, advanced Alzheimer’s disease or dementia, or other serious illness or disability that prevents them from managing their estate.
Conservators may not make loans to themselves or other people with the protected person’s money, make unwise investments or pay themselves for services without court approval. Conservatorship attorneys can help ensure that the conservator is paid reasonably to take on the responsibility, and it is generally expected to be the estate itself that pays the attorney fees.
Conservatorship duties for a protected person do include:
1. Managing their finances
2. Protecting their assets
3. Maintaining accurate records
4. Planning for future financial needs
5. Investing responsibly
6. Paying bills on time
What Is the Difference Between a Power of Attorney and a Conservator?
A power of attorney (POA) is generally set up before it is needed as part of the estate planning process. In most cases, a power of attorney is effective as soon as it is legally signed, unless the document itself indicates that the power of attorney will become effective only in a particular circumstance or on a certain date.
Some powers of attorney, called a springing durable power of attorney, become active when a person becomes incapacitated or unable to make decisions for themselves that are covered by the power of attorney.
A conservator is appointed by the courts to manage the estate of the protected person. Court intervention is usually not required for a power of attorney since the decision was made before the estate holder became incapacitated or needed protection.
Does a Conservatorship Override a Power of Attorney?
If a conservator is requested after a power of attorney has been established, the court may allow those powers to continue. However, if a court determines that the power of attorney is insufficient or that the estate holder did not appoint their power of attorney under ideal circumstances, the court may decide the conservatorship overrides the power of attorney.
In order to avoid an override of your or your loved one’s power of attorney, it is important to speak with an estate planning lawyer as soon as possible to ensure that the power of attorney is comprehensive. This must be done before the estate holder may be in a position to be found not competent to have made the decision appointing the agent in the power of attorney.
Deciding who needs a conservatorship vs. a guardianship is difficult for families. At The Law Offices of Kimberly Butler Rainen, we aim to make the process of considering all the options to protect you or your loved ones as easy as possible. When you are ready to consider moving forward with preparations for the most difficult of times, our conservatorship attorneys near you are ready to step in. Contact our office to schedule a consultation so we can help you plan how to take the right steps for you and those you love.