If an individual becomes unable to handle his or her own daily financial or medical affairs, someone else must step in to take care of things.  If the incapacitated person planned ahead and signed Durable Powers of Attorney for Finances and Health Care, the person named in those documents can take charge.  However, if no planning has been done, then the Court must appoint a Conservator or Guardian.

Guardianship


Guardianship is a court proceeding in which a judge gives someone who is not the parent custody of a child or the power to manage the child’s property (called “estate”) or both.  The court considers which individual's appointment will be in the minor’s best interest.  For the most part, the Guardian has the same responsibilities as a parent.  That means the Guardian has full legal and physical custody of the child.  The Guardian is responsible for the child’s care, including the child’s food, clothing and shelter; safety and protection; physical and emotional growth; medical and dental care; education and any special needs.  The Guardian may also be responsible for the child’s behavior and any damage the child may cause. The relationship is fiduciary, which means that the Guardian is obliged to act in the best interests of the minor and the court supervises the Guardian to assure proper actions are taken on behalf of the minor.

A legal Guardian can care for a child when the parents aren’t able to due to serious physical illness; military duty; rehab programs; incarceration; drug or alcohol abuse; history of physical abuse; or any other reason that prevents them from caring for their child.  The court will look at what is in the best interest of the child to make sure the child is raised in a safe, stable and loving environment.  Relatives, friends of the family, or other people can ask to be legal Guardians.

A Guardianship of the estate is set up to manage a child's income, money, or other property until the child turns 18.  A child may need a Guardian of the estate if he or she inherits money or assets.  In most cases, the court appoints the surviving parent to be the Guardian of the child's estate.

In some cases the same person can be the Guardian of the person and of the estate.  In other cases, the court will appoint two different people.  The Guardian of the estate must manage the child's money, make smart investments, and manage the child's property carefully.

A Guardian may also be appointed for an incapacitated person.  Guardianship of an incapacitated person is typically appropriate when it is necessary to provide continuing care and supervision of the person.  Incapacity can result from any number of conditions including, but not limited to, mental illness, mental deficiency, mental disorder, physical illness or disability, and/or chronic use of alcohol or other drugs.  Essentially, the court must be convinced that the individual lacks sufficient understanding or capacity to make or communicate responsible decisions.  Any competent person may be appointed Guardian; the appointee might be the spouse, an adult child or parent of the ward, or any responsible adult with whom the ward is residing.

Conservatorship

A Conservatorship can be set up after a judge decides that a person (called the "Conservatee") can't take care of themselves or their finances.  The judge will choose another person or organization (called the "Conservator") to be in charge of the Conservatee's care or finances, or both.  The same person can be appointed to take both jobs and both types of Conservators are supervised by and held accountable to the Court.  The court can also appoint someone as a limited Conservator of a person, or a temporary Conservator.

Conservator of the Person

When the court chooses someone as the Conservator of a person, they must arrange for the Conservatee's care and protection; decide where the Conservatee will live; and they are in charge of health care, food, clothes, personal care, housekeeping, transportation, and recreation.  They must figure out what the Conservatee needs and how to meet those needs.  The Conservator of the estate must approve what they buy for the Conservatee, or they may not get their money back.

Conservator of the Estate

The money and property the Conservatee owns are called the Conservatee's "estate."  When the court chooses someone to be the Conservator of an estate, they will manage the Conservatee's finances; protect the Conservatee's income and property; make a list of everything in the estate; make a plan to make sure the Conservatee's needs are met; make sure the Conservatee's bills are paid; invest the Conservatee's money; make sure the Conservatee gets all the benefits he or she is eligible for; make sure the Conservatee's taxes are filed and paid on time; keep exact financial records; and make regular reports of the financial accounts to the court and other interested persons.  The Conservator of the estate must make smart investments and manage the estate’s property carefully. 

There are limits on how the Conservator of the estate can handle the estate's property.  Unless they have a court order, they can't pay themselves or their lawyer with the estate's money, give away any part of the estate, or borrow money from the estate.  If they don't get permission from the court when they have to, they may have to pay back the estate from their own money and they may be removed as Conservator.

The Conservator of the estate must make and keep a list of what the estate owns.  To do this, they need to find the estate’s property, determine the value of the property, file an inventory and appraisal, and maintain insurance.  They must keep complete, exact records of every financial transaction that has to do with the estate.  They have to prepare an accounting report of all income, money, and property they get; what they spent; the date of every transaction; the purpose of every transaction; and what's left after they pay the estate's expenses.

A year after a person becomes Conservator, they must file a petition to ask the court to approve their accounting.  After that, they must do this again every 2 years.  If they don't file their accounting, the court will order them to file it, and they may be removed as Conservator.