Learn About Guardianship or Conservatorship
Guardianship and conservatorship are two legal terms that many people confuse.
Whereas some take them to mean the same thing, others don’t even know what they mean. Although you may instinctively know what guardianship is all about, based on the word “guardian,” do you know what conservatorship is?
Below you will read about these two legal concepts and understand when each one applies. You will also learn how a guardian and conservator are appointed as well as their responsibilities.
Since these two are not the only solutions available for the situations they seek to handle, we will also tell you about alternatives that can be implemented. These help prevent the tedious work and long process of appointing especially a conservator.
But first, let’s distinguish between these two terms.
Who is a guardian?
A guardian is a person appointed by a court to take care of the health and general well-being of another person. The person being taken care of is called a “ward.” Legally, he is referred to as a “ward of the court.”
In most cases, a ward is a minor who cannot make some decisions for himself because he has not attained the legal age for making such decisions. The ward may however be an adult.
In this case, he will be having a guardian appointed over him since he is incapable of making appropriate decisions. Being incapable in this case means mental incapacity.
This might be the result of any of various causes like accidents or old age.
Accidents which result in injuries to the brain or spine often have an impact on mental capabilities. One may end up with some memory loss or suffer an inability to properly coordinate body movement. As a result, taking care of his health, taking medication or even deciding on things like where to live, can become difficult.
This is where a guardian comes in. A petition will be filed in a court and the court, upon being convinced of the situation, goes ahead and appoints a guardian. Guardians will typically only handle health matters and the day to day life situations of the ward.
Who is a conservator?
A conservator on the other hand is mainly tasked with taking care of the financial assets of the person he is appointed over. The person getting conservator services is called a “conservatee.”
Watch the below video for some more information on conservatorship.
Although orphaned children whose parents left them some wealth will benefit from conservatorships, most beneficiaries are the aged people. These are those who have been physically weakened by diseases like Alzheimer’s and thus need someone to help them with their financial duties.
Such people may be having difficulty remembering to pay their bills on time, pay relevant fees like insurance or maybe they are just falling prey to fraudsters. Whichever the case, the court can rule that they need a conservator to assist them handle their finances.
The major difference between a guardian and a conservator is that the guardian handles health and general life issues while the conservator handles finances.
APPOINTING A GUARDIAN OR CONSERVATOR
The process of appointing either a guardian or conservator is a legal one. There must be an application for the same in a court. A petition will be filed describing the situation and showing the need for either of these two people.
The petition can be filed by any person of interest including family members, friends, relatives or even professional advisers. The intention here is to bring to the court’s attention the fact that someone is not able to care for himself thus the need for the court to intervene.
The appointing process normally starts with the court appointing either a person or committee to investigate the matter. This person or committee will be tasked with carrying out an impartial investigation into the health status of the person for whom the service is being sought.
The investigation process may require interviews with the allegedly incapacitated person, family members and relatives. Other people may also be interviewed to find out the true health standing. These may include friends and neighbors.
Several meetings are bound to take place between the incapacitated person and the investigating team. As necessary, medical tests will be run to determine the extent of incapacity suffered by the person.
Since the person himself will be involved in the process as he is interviewed, he must be able to understand what he is being asked or told. In the event that it is determined that he cannot, then an attorney will represent him.
The investigating team will then prepare and present a report of their findings to the court for the judge to review. Depending on how the team operated, every member of the team may have to present his own report of what he observed and concluded.
During the hearing of the petition, the judge may ask the team some questions so as to establish the condition of the person. Just like a normal court hearing, the court will listen to arguments and counterarguments concerning the matter.
The interested parties will normally be present. The judge will proceed to make a ruling on whether he deems the allegedly incapacitated person to be truly incapacitated. Mental incapacity normally comes in different degrees as medical professionals may diagnose it.
Generally speaking tough, the court will either rule that the person is either partially or completely incapacitated. This ruling is what will determine whether a guardian and conservator will be appointed and for what they will be responsible.
RESPONSIBILITIES OF A GUARDIAN
The guardian is primarily responsible for making decisions touching on the health of the incapacitated person. This can happen in many ways. Some are listed below:
- Make appropriate plans for relevant services – these may cover the provision of food, home cleaning services, laundry services etc. The guardian must ensure that these services are not just planned for but are actually provided.
- Make the right decisions on behalf of the ward – decisions made must be able to keep the ward safe and benefit him accordingly. This is achieved by understanding the needs and, in some cases, the preferences, of the ward.
- Ensuring that the necessary life activities such as recreation and education are not excluded from the ward’s life.
- Change the ward’s residence – this can happen if it is determined to benefit the ward. This and other major decisions may require the court’s approval before being implemented.
- Organize for medical procedures where necessary.
- Keep the court updated with reports of the guardianship.
The court may put in place some restrictions or give complete leeway to the guardian in regards to the amount of authority the guardian may exercise. This is especially important in cases where there may be emergency medical services required.
RESPONSIBILITIES OF A CONSERVATOR
The conservator is mainly responsible for matters to do with assets and other financial materials. Depending on the exact arrangement and the ruling given by the court, conservators generally perform the below duties:
- Manage the finances of the conservatee
- Secure and protect the known assets of the conservatee – this could mean locating the assets and controlling their usage.
- Make wise investments on behalf of the conservatee.
- Collect income, debt and claims for the conservatee
- Settle bills and make necessary payments where the conservatee is bound to do so.
- Sell or transfer the conservatee’s property either for profit or to avoid destruction.
- Vote on behalf of the conservatee in meetings.
The lists of responsibilities presented here are not exhaustive. Neither are they applicable across all the states. The laws of specific states may give more leeway or restrictions on the part of the guardian or conservator.
All in all, the court will be working to ensure the incapacitated person is taken care of.
Compensation of the guardian or conservator
Considering the amount of work done by the guardian or conservator, are they compensated and by who?
There are basically two ways through which conservators are compensated.
- From the conservatee’s estate – this is the usual source of compensation and always the first option to be considered. This is because it is considered that the conservatee is receiving a service for which he should pay. The amount paid as compensation can be very high, especially if the person appointed is a professional conservator. This adds considerably to the cost of the whole process before the actual appointment.
- By the state – this option is usually reserved for those conservatees who do not have the funds to pay for the service. In this case, the court will appoint a public conservator or guardian. His compensation will therefore be done by the state.
ALTERNATIVES TO GUARDIANSHIP AND CONSERVATORSHIP
The process of appointing a conservator is normally long and costly. Many people are involved and fees, especially for attorneys, can be high.
Some alternatives exist and they are worth considering because of the benefits of saving time and money. One thing to note however, is that these alternatives must be implemented early. They have to be done before the person involved becomes incapacitated.
The reason for this is obvious and simple. If these options are attempted at a time when the mental capacity of the person is already in question, then the whole process will be questionable. It may be necessary to investigate the intentions of those making the petition or those suggested as the conservators.
Such cases have been widely witnessed when a wealthy person is said to be incapable of making decisions for himself. Suddenly, a family member makes arrangements for the wealth to be transferred to him so that he takes care of the suffering person.
To avoid this, the conservatee must make the decision as to which options he wants to go with. Below are some of the options available. You should check with the specific laws of your state to ensure you are operating within the law.
1. Power of attorney
This is one of the most common alternatives that people implement.
A power of attorney is a legal document which gives a person (referred to as agent or attorney-in-fact) the power to act on behalf of someone else (the principal).
These documents do not necessarily come into force when someone is declared incapable of running his own life. Rather, they are in effect from the time they are signed.
Watch the below video to understand more about a power of attorney and what dangers could result from it.
They can be general in nature, granting authority to the agent to engage in a wide range of actions on behalf of the principal. When the power of attorney is termed as limited, it means that the principal has granted general authority but with certain restrictions.
The power of attorney could also be specific. In this case, the authorization given is tied to a particular situation.
These documents can also be distinguished as being either regular or durable powers of attorney.
- Regular power of attorney – this is a power of attorney which is in effect as long as the principal is able to make his own decisions. The principal remains to be the overall authority and can make contrary decisions.
- Durable power of attorney – this power of attorney is “durable” in the sense that it remains in effect even after the principal is not able to make decisions by himself. In other words, it serves its purpose when the principal becomes incapacitated.
When considering an alternative to conservatorship, a durable power of attorney is what you should go for. This covers you even when you cannot communicate and prevents the need for costly court processes.
Trusts are agreements entered into between a trustor and a trustee, for the benefit of a third party called a beneficiary.
In most cases, trusts are built around assets and the title handed over to the trustee by the trustor. The specific agreement depends on the parties involved. However, usually, the trustee will hold the title and hand it over to the beneficiary at a later date.
This can be when the trustor is no longer alive or just when he is no longer able to make decisions for himself. In this case, it is not just physical assets that are involved but also money. This could be in the form of regular earnings from different sources of income held by the trustor.
Trusts can be used as great alternatives to conservatorship. They will also save you the hassle and costs involved in taking the probate route. They mainly fall under the below categories:
- Living trust – this is a trust in which the assets are specified as being for the use of the trustor in the course of his life. It is upon death that the assets are transferred to his beneficiaries.
- Testamentary trust – this trust is usually part of a will. The testamentary trust basically contains instructions on how to distribute the assets of the trustor to his beneficiaries.
- Revocable trust – this is a trust which can be altered by the trustor in the course of his life. If he determines so, the trustor can also terminate the trust altogether.
- Irrevocable trust – this is a trust that cannot be altered at all. Once it is made, it remains as it is and will be implemented accordingly once the trustor dies.
3. Representative payee
A representative payee is someone or an organization which has been appointed to receive social security benefits on behalf of someone else. The person on whose behalf the benefits are being paid, is one deemed unable to either manage or direct the management of his benefits.
The representative payee will usually be restricted only to the social security benefits and does not have any legal authority over the beneficiary’s other forms of income. It should also be noted that representative payees are not allowed to charge fees for being a payee.
4. Healthcare proxy
This is a document which gives a medical patient the ability to appoint an agent who will be legally allowed to make decisions on his behalf. These decisions are purely for the healthcare of the patient.
Once effected, a healthcare proxy does not limit the patient, called a primary individual, to make decisions for himself. It is only when the patient has been confirmed to be incapable of making such decisions by himself that the agent takes over decision making.
5. Informal arrangements
There is also an option of setting up informal agreements. In fact, many of these exist. In most cases, it is the potential disagreements which may arise that cause people to prefer implementing legal options.
Informal agreements are easy to reach and can also be legally binding. You can involve an attorney who will draft a simple document detailing how the person involved will be cared for.
The document can include as much details as possible and when it’s finished, the attorney should maintain a copy of it.
Situations where informal agreements are chosen normally have the care of the incapacitated person handled by family members. In their absence, close relatives or trusted friends can also be in charge.
The process of appointing a guardian or conservator can be draining. It is best to plan ahead and choose an alternative to this process. One of the options described above can certainly save you time and money. Since old age is coming and you won’t escape the effects, why not plan ahead?