What Happens in a Guardianship or Conservatorship?

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Guardianship or Conservatorship What Do They Do?

Guardianships and conservatorships are both court-ordered requests. When a loved one can no longer care for themselves a family member will hire an attorney to discuss options. The attorney helps the family ask the court to appoint a guardian or conservator when their loved one can no longer make their own decisions in a competent manner.

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

So Now You Have Guardianship…

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 guardian or conservator will often employ the services of an attorney to file petitions with the court. This enables 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.