If a person becomes incapacitated and he or she does not have written Powers of Attorney, a court proceeding will be necessary to determine if someone else must help make financial and health care decisions. The proceeding will be conducted in the probate court. The probate judge will determine who will have authority over the incapacitated person and his or her money.
Anyone appointed to make decisions regarding a person’s health care and living arrangements is called the guardian. A person appointed to handle the money is the conservator. If someone you know is involved in a Guardianship or Conservatorship proceeding, he or she must have competent and seasoned legal counsel to ensure his or her rights and preferences are protected.
GuardianshipA guardian is responsible for making decisions regarding an incapacitated person’s personal affairs and living arrangements. Many people just need a little help with personal care – someone to organize their medical care or see that their living conditions are reasonable. Other people need more constant and direct supervision, in which case the guardian is responsible for arranging for and overseeing care in a nursing home, an assisted living facility, or a home setting.
Consideration also must be given to the scope of the guardian’s authority, the rights to be retained by the incapacitated individual, and the oversight of the care given to him or her. Guardians must submit an annual report to the court regarding the incapacitated person’s health condition, and every few years the court will assign an attorney to review the guardian’s conduct to ensure the incapacitated individual is being cared for properly. In reality, however, there is little direct supervision of the guardian. So, having the right person appointed may be the difference between the incapacitated individual receiving quality care, or being neglected.
If a person is incapacitated and cannot handle his or her own financial affairs, the probate court will appoint a conservator. In some cases, the conservator may also serve as the guardian. The conservator must handle all the assets, and account annually to the incapacitated person and other family members. The accounting must be submitted for review to the probate court. Sometimes, the court appoints an attorney to review the details of the accounting to ensure accuracy.
While most Conservatorships are administered without any serious financial discrepancies, the court process of overseeing the conservator is not without its flaws. It is critical to have a competent and trustworthy individual handling the assets. There are many options regarding the nature of a Conservatorship and each situation is different.
In both Guardianship and Conservatorship cases, the person who is incapacitated needs to be protected, but also should be given as much freedom to make decisions as reasonably possible. We understand that while Guardianships and Conservatorships protect people, they also limit people’s freedom. We also understand that not everyone will make a good guardian or conservator. We are adept at assisting our clients in deciding how to approach any probate proceeding to ensure the right person is appointed, and that such person diligently follows through with his or her duties.