Guardianship & Conservatorships

Click here for common questions regarding Guardianships & Conservatorships

A guardianship and a conservatorship is a protective arrangement established by a court for an incapacitated person. Guardianships and conservatorships are usually established for older adults who have lost mental capacity due to dementia, major strokes or severe mental illness; among other conditions. These incapacitated adults often need help with their medical treatment, residential placement, and the management of their financial affairs.

Oast & Hook can assist you in becoming appointed Guardian of the person and Conservator of their property thereby ensuring that your loved one will be secure and cared for and that you will be able to make decisions on their behalf while protecting their property.

An incapacitated person is an adult who has been found by the court to be incapable of receiving and evaluating information effectively or responding to people, events, or environments to such an extent that the individual lacks the capacity to:

• Meet the essential requirements for his or her health, care, safety, or therapeutic needs without the assistance or protection of a guardian, or
• Manage property or financial affairs or provide for his or her support or provide for his or her legal dependants without the assistance or protection of a conservator.

A finding by the court that an individual displays poor judgment, by itself is not considered sufficient evidence that a person is incapacitated. A guardian is someone appointed by the court responsible for the personal affairs of an incapacitated person; who will make decisions regarding the person's support, care, health, safety, rehabilitation, education, therapeutic treatment and residence. A conservator is a person appointed by the court who is responsible for managing the estate and financial affairs of an incapacitated person.

Because the appointment of a guardian or conservator is a remedy of last resort, other alternatives should be considered. Among other things, a prospective guardian or conservator should determine if the individual is truly "incapacitated, and whether they have a durable power of attorney or an advance medical directive? Depending on the answer to these questions it may suffice to have someone appointed the representative payee of the incapacitated person.

When there is no alternative to the appointment of a guardian or a conservator, a petition must be made to the circuit court in the city or county where the incapacitated person lives or is located or where that person lived immediately prior to becoming a patient in a hospital or a resident in a nursing home facility or any other similar institution. An incapacitated person is entitled to a jury trial and may have independent counsel appointed, call witnesses and cross examine them. The court must appoint a guardian ad litem, in other words, an attorney whose duty is to protect the interests of the incapacitated person. Notice of the proceeding must be given to family members. In addition, a health care professional must file a report with the court evaluating the condition of the incapacitated person. Before appointing a guardian or conservator, the court must make several specific findings of fact and conclusions of law. If the court appoints a guardian or conservator, then that person must qualify in the clerk's office, post required bonds and periodically report as to his or her actions as the guardian or conservator for the incapacitated person.

The appointment of a guardian or conservator for an incapacitated person is a remedy of last resort. Because of this, every adult should have a durable power of attorney and advance medical directive.