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Eric Smith, Barbur Laskey

Guardianships and Conservatorships

| Eric Smith, Barbur Laskey

If you have a loved one who can no longer make decisions on his or her own behalf, then your loved one may need a Guardianship and/or Conservatorship if he or she has not planned ahead. The terms Guardianship and Conservatorship are often confused and thought to be interchangeable, but they are different. A Guardianship covers the authority over healthcare and personal matters and a Conservatorship covers the authority over finances and assets. It is not uncommon to petition the court to appoint both a Guardian and a Conservator in the same proceeding.

A Guardianship may be needed when an individual is unable to manage his or her care. A Guardian is a person appointed by the court to make important decisions on behalf of the individual regarding his or her healthcare and personal matters. These responsibilities include choosing where the individual will live, providing for care, arranging for education when appropriate, and making healthcare decisions. A Conservatorship may be needed to protect the estate when an individual is unable to manage his or her own finances and assets. A Conservator is a person appointed by the court to make important decisions on behalf of the individual regarding his or her finances and assets.

A protective proceeding is opened by filing a petition that contains facts showing the need for a Guardian and/or Conservator and establishing that the proposed fiduciary is suitable. All interested parties must be notified of the action, including the individual allegedly in need of a Guardian and/or Conservator, who may object to the appointment of a fiduciary. For a Guardianship, the court will also send out a “court visitor” to obtain any relevant information concerning the need for a potential Guardian and submit a report to the court. A judge will then review all of the relevant information to determine whether the individual meets the legal criteria for incapacitation and is in need of a fiduciary to be appointed. Once appointed, the Guardian must annually file a Guardian’s report and a Conservator must file an inventory and an annual Conservator’s Accounting with the court.

Before petitioning the Court to be appointed either as a Guardian or Conservator, it is important to determine if a less restrictive alternative is available. If you have any questions regarding the need for Guardianship or Conservatorship for a loved one, or if you want to discuss less restrictive alternatives, please contact Barbur Law to discuss your options.