As a result of a legal proceeding in which a person’s rights must be carefully considered, a circuit court may appoint a guardian or conservator for an individual. This means that the court has determined that an adult individual, 18 years of age or older, is unable to make decisions for himself or herself as it relates to his or her basic health, care and safety needs without the assistance or protection of a guardian; or is unable to manage his or her financial affairs without the assistance or protection of a conservator.
A guardian is a person appointed by the court who is responsible for the personal affairs of a person. The practical responsibilities of a guardian may include deciding where the person will live, how meals and daily care will be provided, how transportation will be arranged and how health care decisions will be made.
A conservator is a person appointed by the court who is responsible for managing the estate and financial affairs of a person. The practical responsibilities of a conservator may include controlling the person’s assets, paying bills and managing property.
WHO IS QUALIFIED TO SERVE AS A GUARDIAN OR CONSERVATOR?
Any adult may be appointed to serve as a guardian or a conservator, or both, upon determination by the court. It is important for any guardian or conservator to consider the person’s maximum self-reliance and independence. A person is entitled to have his or her needs met in the least restrictive manner possible. In appointing an individual to serve as a guardian or conservator, the court will consider these factors, as well as the suitability of the proposed guardian or conservator and the limitations of the person. The court will select an individual or entity qualified to act in the best interest of the person, and will consider such factors as: geographic location, family or other relationship, ability to carry out duties, commitment to promoting the protected person(s)welfare, any potential conflicts of interest, and recommendation of relatives.
THE PROCEDURE FOR APPOINTING GUARDIANS AND CONSERVATORS
In order for a guardian or conservator to be appointed, a petition must be filed in the circuit court in the county where the person in need of a guardianship or conservatorship lives.
The petition must be filed with the clerk of the circuit court, along with a filing fee.
An evaluation report by a physician or psychologist must accompany the petition.
Once the petition is filed, the court will set a hearing and the person will be notified of the proceedings. The court will appoint an attorney, known as a “Guardian ad Litem” or “GAL)” to represent the person alleged to be incapacitated. The GAL will meet with the person, the petitioners and the proposed guardian(s) and conservator(s), investigate the situation and submit a written report to the Court.
The Circuit Court will have a hearing on the petition —-usually on a Friday morning. The Petitioners, their Attorney and the GAL will be present. The alleged incapacitated person does not have to be present.
If after the hearing the Court finds that the guardianship or conservatorship is appropriate, it will issue an Order and Letters of appointment will be able to be obtained by the Probate Office.
If a Conservator is to be appointed a bond must be obtained in the amount specified by the court. There is no bond for Guardians.
WHO MAY FILE A PETITION?
The petition for appointment of a guardian or conservator may be filed by any interested person. An interested person is defined as anyone with an actual and substantial interest in the legal proceeding. Many times the interested person is a parent, spouse or child of the incapacitated person.
DUTIES OF A GUARDIAN
Decision making is a fundamental responsibility of a guardian. Your obligation to the incapacitated person is to exercise care and diligence when making decisions on his or her behalf. Decisions should be made in a manner that enables the person to maximize independence and self-reliance.
As guardian you are responsible for making decisions and providing for the incapacitated person’s care and well-being. You must decide where and how the person will reside, and make sure that he or she obtains the necessary health care and therapeutic treatment. You must maintain sufficient contact with the person to know of his or her capabilities, limitations, needs, and opportunities.
Consider the express desires and personal values of the person when you make decisions on his or her behalf. Act in the person’s best interest and exercise reasonable care diligence and prudence.
You will also be required to report about the status of the incapacitated.
LIABILITY / REMOVAL
You cannot be held liable for acts of the incapacitated person unless you are found to be personally negligent. However you do have a duty to the person and may be held personally liable for a breach of that duty. This is called a fiduciary duty and means that because you are serving as a guardian, your actions must merit trust and confidence. Therefore, you must avoid conflicts of interest and demonstrate a high degree of loyalty to the person(s) best interests.The court may remove a guardian for a number of reasons that include: neglecting the care and custody of the person or failing to act in his or her best interest; failure to file reports or comply with court orders; illness,incapacity or inability to perform duties.
CHANGING OR ENDING YOUR DUTIES AS GUARDIAN
Your appointment as a guardian can be terminated if it is so ordered by the court, if you are granted permission by the court to resign, if you are removed for any of the reasons mentioned above, or if the incapacitated person dies. There are also a number of circumstances that warrant changing or modifying your status as a guardian. This can be accomplished by you or or any other interested person, by filing a petition with the court.
DUTIES OF A CONSERVATOR
The duties of a conservator focus on management of the financial affairs of a incapacitated person. As conservator, you will be responsible for the person’s assets or income, for establishing a budget and paying bills or debts, for managing and investing property. You will also be required to report about the status of the estate, assets, receipts and disbursements. estate, assets, receipts and disbursements.
You have a duty to the incapacitated person and may be held personally liable for a breach of that duty. This is called a fiduciary duty and means that because you are serving as a conservator your actions must merit trust and confidence. You are not personally liable on a contract entered into in a fiduciary capacity while administering the estate unless you fail to reveal your representative capacity or to identify the estate. However, you may be personally liable for obligations arising from control of the property or for wrongful acts committed in the course of administering the estate if you are personally negligent.
THE ORDER OF APPOINTMENT AND POSTING OF BOND
The court’s order appointing you as conservator will include the specific areas of responsibility for managing the estate and financial affairs of the incapacitated person. You will be required to take an oath promising to faithfully perform your duties as conservator. The order will also require the posting of a bond and will determine the amount which takes into consideration the value of the estate, annual income and other receipts that are within the conservator’s control.
The court may remove a conservator for a number of reasons that include: illness, incapacity or inability to perform duties; wasting or mismanaging the estate; unreasonably withholding distributions or making distributions in a negligent or reckless manner; abusing powers or failing to discharge duties; failure to file accountings or comply with court orders; failure to file sufficient bond after being ordered to do so; not acting in the best interest of the person or of the estate.
CHANGING OR ENDING YOU DUTIES AS CONSERVATOR
Your appointment as a conservator can be terminated if it is so ordered by the court, if you are granted permission by the court to resign, if you are removed for any of the reasons previously mentioned, or if the incapacitated person dies.
QUESTIONS AND ANSWERS
What is a guardian?
A guardian is responsible for the personal affairs of a incapacitated person.
What is a conservator?
A conservator is responsible for the financial affairs of a incapacitated person.
What is the purpose of the evaluation report by a physician or psychologist?
The law requires that an evaluation report by a physician or psychologist be filed with the petition for appointment of a guardian or conservator. The primary purpose of the report is to provide evidence as to whether the person alleged to need protection meets the definition of a incapacitated person under the law.
If I am appointed as a guardian, am I required to post a bond?
Usually not. The court has the discretion to determine if this is necessary.
If I am appointed as a conservator, am I required to post a bond?
The law requires that a conservator post a bond, except for certain circumstances that allow the court to excuse the bond.
What standards should I use when making decisions for a protected person?
Exercise your authority only to the extent necessary because of the person’s limitations. Encourage him or her to participate in the decision-making and to develop the capacity to act on his or her own behalf. Consider the person’s express desires and personal values when you make decisions.
Am I entitled to compensation?
Any guardian or conservator is entitled to reasonable compensation as allowed by the jurisdiction, including reimbursement for costs advanced.
I was appointed guardian and conservator for my son after he was disabled by a head injury. He is now doing well and doesn’t need me to make his decisions. Is it appropriate to terminate the guardianship and conservatorship?
Yes. When a protected person no longer needs a guardian or conservator, it is appropriate to terminate, revoke or modify the appointment. A petition must be filed with the court to make these changes.
I am unable to continue as guardian for my sister. How do I resign?
Normally you must petition the court.
What happens when the person for whom I am guardian dies?
A guardianship or conservatorship terminates with the death of the person. However, if you were appointed a conservator, you have a responsibility to account for the estate of the person; either an administrator or executor will need to be appointed to distribute any remaining assets of the estate
© Copyright Sheri R. Abrams, Attorney at Law. All rights reserved.