Guardianship is an involuntary court-involved proceeding during which a court may appoint an individual or agency to act as a guardian on behalf of an incompetent individual. Whether an individual is incompetent is legal determination that only a court may make: Your doctor doesn’t make this determination; Your spouse doesn’t make this determination; Your children do not make this determination. If guardianship is pursued, an evaluation of your competency by a doctor will be required, but that doctor’s evaluation is not a legal determination, it is simply a basis for a court’s determination regarding incompetency.
This type of proceeding may be utilized regardless of whether the individual has valid estate planning documents such as Powers of Attorney for Health Care or Finances. The primary purpose of a guardianship is the protection of the individual and his or her assets/income. Sometimes this is necessary even when that individual has valid estate planning documents. Sometimes individuals are taken advantage of, even by those they’ve designated in their estate planning documents. A guardianship can be used to review the conduct of someone acting under a Power of Attorney for Health Care or Finances. A guardianship can be used to alleviate disputes between decision-makers or when there are conflicting Powers of Attorney that surface.
Previously, guardianships “took away” rights and authority from the individual under guardianship. In recent years, the guardianship laws have changed so that the goal is for the individual to be as independent as their unique circumstances allow by retaining as much decision-making authority and as many rights as is consistent with that individual’s abilities.
Administration of a guardianship will require a guardian of the person to file an annual report about the condition of the individual under guardianship and, if a guardian of the estate is implemented, an annual accounting will be required.
Another court-involved proceeding utilized to protect vulnerable individuals is a Conservatorship, during which a Court appoints an individual or agency to administer an individual’s income/assets, including making expenditures for the benefit of that individual. This proceeding is voluntary and is not dependent upon an individual’s competency. In addition, a conservatorship is limited to financial matters rather than health care decisions. An individual may not meet the legal standard of incompetence, but may still be considered to be vulnerable, maybe because of age, or physical disability or developmental or cognitive disability, and thus may need assistant with their financial matters. Conservatorships require the filing of an annual accounting, which details the individual’s income and assets, as well as the use or expenditure of the income and assets.
Some individuals find comfort in using these processes that involve the Court. Other individuals find these processes to be intrusive. Many individuals find these processes to be complicated and/or the court system to be difficult to navigate. We can help.
There are many roles involved in these proceedings. We can provide the following services:
- Initiate a guardianship proceeding;
- Initiate a conservatorship proceeding;
- Object to a guardianship that has been filed about you;
- Act as a guardian of the estate or conservator for individuals;