When an individual becomes incapacitated and can no longer manage his or her affairs or take care of himself or herself, family members or other concerned individuals may ask the Court to protect the incapacitated individual by appointing a Conservator or Guardian.
Guardianship Proceedings
Frequently, aged individuals become incapacitated and unable to tend to their daily living needs and are without a valid Power of Attorney. In such cases, a Complaint may be filed for Guardianship over the Person and/or Property. The Complaint will need to include two Doctors’ Affidavits which state that the individual is not competent to make his or her own decisions regarding his or her personal, medical, and/or financial affairs and a Certification of their assets. Once the Complaint is filed, the Court will appoint an attorney to represent the individual that is alleged to be incapacitated.
At the Guardianship hearing, the Court will determine the capacity of the alleged incapacitated individual. In the event the Court finds that the individual is incapacitated, the Court will determine whether or not the filing party is an appropriate person to be the Guardian. Once appointed, the Guardian of the Person and Property of the incapacitated will then be responsible for making personal, medical, and financial decisions as prescribed in the Court decision. The decision-making authority may be limited and must be made for and in the best interests of the incapacitated individual.
Conservatorship Proceedings
A Conservatorship is typically more limited than a guardianship. The Conservatorship is a relationship between a caregiver and an individual who cannot make decisions for himself or herself, perhaps because the affairs of the Conservatee are more sophisticated than the mental capacity of the Conservatee can handle. Unlike a Guardianship, a Conservatorship does not require a determination of incapacity. The Court determines that the Conservatee’s decision-making abilities are not sufficient and he or she cannot properly manage financial or personal affairs.
Senior citizens face increasing physical and mental impairments as the population of that age group grows. Careful planning can protect a Senior’s estate assets against dissipation. Seniors can use Revocable Living Trusts and Powers of Attorney to manage their assets. However, many Seniors fail to make such plans, or the plans prove to be insufficient. As a result, court-imposed decision-making, such as a Guardianship or Conservatorship, may be necessary.
Guardianship & Conservatorship Litigation After a Passing
When an individual becomes incapacitated and can no longer manage his or her affairs or take care of himself or herself, family members or other concerned individuals may ask the Court to protect the incapacitated individual by appointing a Conservator or Guardian. A similar proceeding for developmentally disabled or mentally ill individuals allows parents or family members to ask the Court for the appointment of a Guardian of the disabled person. In cases in which a minor is to receive a gift, inheritance, personal injury award, etc., it may be necessary that his or her parents (or other responsible adult) be appointed by the Court as Guardian of the minor’s estate. In situations where a minor’s parents die or their parental rights are terminated, the Court may appoint a Guardian of the minor.
Ordinarily, these Conservatorship and Guardianship proceedings are uneventful and uncontested. However, in some cases, disputes arise among family members or other interested persons.
Challenging an Appointment
Contested Conservatorship and Guardianship cases may involve: challenging the appointment of a sibling or other person as unfit; challenging the incapacitation of an individual; limiting the scope of the authority of a Conservator or Guardian; and seeking to have a Guardianship or Conservatorship revoked because of financial abuse, emotional abuse, or failure to care for or act in the best interest of the ward.
Guardianship and Conservatorship proceedings require a formal complaint to be filed with the Court and may require subpoenas, depositions and a trial. Additionally, Certifications from two medical doctors or psychologists are required and the Court will appoint counsel for the alleged incapacitated individual.
