What Happens in a Guardianship or Conservatorship?

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The formal requirements for the appointment of a guardian or conservator will vary among the states, but generally speaking, the process is handled by the probate court.  In many situations, the court will appoint a near relative, but there is no guarantee that the person appointed is someone who the incapacitated person would have chosen if they could voice their opinion.

Once a guardian or conservator has been appointed, the court authorizes and supervises the decisions of the decision-maker on behalf of the incapacitated person. The person acting as guardian or conservator will often employ the services of an attorney to file petitions with the court to enable the guardian or conservator to sell assets, expend funds for the beneficiary’s needs, and comply with reporting rules. In addition, an accountant is hired to prepare statements for the court to review and ultimately approve or reject.

Since legal and accounting fees are typically paid from the incapacitated person’s assets, this is obviously cumbersome and expensive, and to be avoided if possible.  In summary, a person’s unplanned disability will involve substantial costs, time, and frustration for the person and his family.

How Can I Avoid This Scenario?

You can avoid this scenario by planning ahead. Your estate planning attorney can provide, prior to incapacity, appropriate documents that will carry out your wishes, using the people you desire, and avoiding the courts altogether. Documents may include a variety of powers of attorney, health care directives, and trust instructions.