Guardianship / Conservatorship
Ideally, a person will have planned in advance for the event of incapacity by having executed advance directives concerning their health care and a financial power of attorney regarding the management of their affairs. By such advance planning, a person and his or her family can often avoid going to court to establish a guardianship and conservatorship. However, even with such advance planning, instances arise that render such advance planning ineffective and result in the need for a guardianship and/or conservatorship, such as when a person is uncooperative or resistant to care or when a person is vulnerable to exploitation of abuses of an agent or attorney-in-fact's power under the directives.
A guardian is someone who is appointed by the Court to make personal and health care decisions for a person who is incapacitated, that is, unable to make reasonable decisions concerning their person, due to a mental or physical disability, as well as chronic drug use or intoxication. A conservator is someone who is appointed by the Court to manage a the finances and property of a person who is determined to be "in need of protection," that is, the person is unable to manage their affairs effectively for the reasons set forth above, the person has property which will be wasted or dissipated without proper management, or protection is necessary to make funds available for the person's support, care, and welfare.
A physician or registered nurse must support the need for a guardianship in writing and, although such a statement is not required for a conservatorship, the Court, in its discretion, often requires it. To obtain the additional authority to consent to inpatient mental health or psychiatric treatment, the person seeking appointment as guardian must demonstrate a current, or, at least, foreseeable, need for such treatment as supported by the report of a physician, psychologist, or psychiatrist.
The Court will appoint whomever is seeking the appointment as long as he or she has priority and the Court does not otherwise have good cause to appoint another person or entity. The person for whom the guardianship and/or conservatorship is being sought will be represented by an attorney and have an opportunity to express his or her wishes and position in the matter. A guardianship and/or conservatorship can be sought on a temporary basis if an emergency exists and until such time as a permanent appointment can be made.
A guardian must report to the court annually, as well as submit an annual report of physician. In the case of a guardian with the authority to consent to inpatient mental health or psychiatric treatment, the guardian must include the report of a physician, psychologist, or psychiatrist supporting the continued need for such authority otherwise the power lapses. A conservator must file an inventory of the assets of the estate, as well as an estate management plan, within ninety (90) days of appointment and an annual accounting. A conservator will have to be bonded for the annual income of the protected person as well as any assets within the conservator's control, otherwise, the assets will be restricted, that is, the conservator will be unable to make withdrawals, transfer, or encumber the asset without prior Court approval.