Werner Law, LLC
Guardianships and Conservatorships
A guardianship covers authority over health care. A conservatorship covers authority over money and assets.
A guardianship can apply to children and also may be in order when an adult is unable to manage his or her physical needs and health care. If the person has not appointed someone to make health care decisions, state law allows for the approval of a guardianship. A guardian does not have a financial responsibility, but instead looks out for the physical and/or mental well-being of the protected person. A guardian makes decisions about issues such as where that person should live, and also makes sure he or she has proper nutrition and medical care. The guardian is appointed by the court.
How does the process work? Someone — usually a family member — files a petition with the court to become the guardian. The court will consider whether this person is the best one to fill this role. If the court decides someone else would be better suited, it may appoint a disinterested third party to serve as the guardian. There are professional guardians who perform this service for a fee.
If someone is unable to manage his or her financial affairs and has not executed a power of attorney for finances, state law allows for the appointment of a conservator. The conservator is appointed by the court.
The process is similar to that of guardianship. Someone — usually a family member — files a petition with the court to become the conservator for an individual, who may be a child or an adult. The petition will state that the individual in question is unable to manage his or her income and property without assistance. The petition must specify what is wrong with the person and give examples of his or her inability to manage financial affairs.
If the court agrees that the person in question cannot manage his or her finances, the court will declare him or her a “protected person” and appoint a conservator. The court will decide if the person who filed the petition is the best person to manage the financial affairs of the protected person. Usually the court will appoint a family member. However, if the court believes it is in the best interest of the protected person, the court may appoint a disinterested third party to serve as conservator. There are professional conservators who perform this service for a fee.
Once appointed, the conservator must file an inventory of the protected person’s assets with the court, transfer the assets into the conservatorship name, and obtain a bond that insures the conservator’s honest management of the assets. The conservator must also prepare and file an annual accounting with the court to explain every receipt and disbursement of assets.