It’s difficult to see a loved one develop a disease or illness that impedes their ability to care for themselves. Fortunately, in cases like these, the law allows for others who are close to that person to obtain court authorization to handle their basic needs. This is done by way of guardianships and conservatorships. Has someone in your life reached the point where they can’t act in their own best interest? Do you have questions about your legal options for taking care of them? Rosen Hagood has the answers.
What is a Guardianship?
A guardianship is a court-ordered legal arrangement by which one individual (the guardian) is given the power to make decisions for another individual (the ward) who cannot do so. In the context of estate planning, the guardianship is established on behalf of an adult who has become incapacitated because of conditions such as:
- Physical or mental illness
- Mental deficiency, e.g., dementia
- Brain injury
- Disability
- Advanced age
- Drug or alcohol abuse
- Anything else that detracts from the ward’s ability to manage their personal affairs
The guardian has the authority to make important decisions for the ward, such as those concerning:
- Physical and mental healthcare
- Where the ward will live
- How the ward’s basic needs will be met
- The ward’s comfort and personal maintenance
In making such decisions, the guardian is required to act as a fiduciary. This means, among other things, acting in the best interests of the ward. Fiduciaries are entrusted by the law with a high degree of responsibility, so courts take seriously the decision of whether to create a guardianship.
What is a Conservatorship?
Conservatorships are similar to guardianships, with the primary difference being that conservators are responsible for managing the ward’s financial affairs. The conservatorship may therefore have responsibilities for such matters as:
- Creating a budget for the ward
- Helping the ward pay for healthcare expenses
- Helping the ward pay monthly bills
- Reviewing the ward’s income and expenses
- Managing the ward’s property and investments
Conservators owe fiduciary duties that are similar to those of guardians. On top of those responsibilities, the conservator will be required to furnish a bond to ensure the ward’s assets and property are protected. The amount of the bond will be based on the value of the ward’s personal property and estimated income.
How are Guardianships and Conservatorships Created?
The basic steps for appointing guardians and conservators are similar to each other. An individual such as a family member or other concerned person will first have to petition the Probate Court. A hearing will then be scheduled to determine whether the individual over whom the guardianship or conservatorship is requested is actually incapacitated.
During this hearing, the court will hear testimony from medical professionals, family members, and others to determine whether the potential ward lacks legal capacity. To protect the best interests of the potential ward, an attorney will be appointed to represent him or her. If the court determines that the individual is incapacitated, the judge may appoint a guardian, a conservator, or both.
The activities of the guardian and conservator are closely monitored by the court. For instance, the guardian or conservator must report periodically (and at least annually) to the court concerning the ward and his or her personal property and other assets being managed. While state law sets forth the precise responsibilities and powers of guardians and conservators, judges have the power to modify these as circumstances dictate. If you’re considering becoming a guardian or conservator, a lawyer can further explain your duties.
Who Can Serve as a Guardian or Conservator?
State law sets forth, in the order of priority, a list of several potential individuals who may be appointed by the court to act as a guardian or conservator. That list includes the following:
- A person previously appointed to be a guardian or conservator
- A person nominated to serve as a guardian or conservator by the incapacitated individual, if the person has sufficient capacity to make a choice
- An agent designated in a power of attorney by the incapacitated individual
- The spouse of the incapacitated individual
- An adult child of the incapacitated individual
- A parent of the incapacitated individual
- The person nearest in kinship to the incapacitated individual
- A person with whom the incapacitated individual resides
- A person nominated by a health care facility caring for the incapacitated individual
- Any other person considered suitable by the court
How Does a Power of Attorney Affect the Process?
If the ward previously executed a healthcare power of attorney or durable power of attorney, these documents could have an impact on the guardianship and conservatorship process. Healthcare powers of attorney often make a guardian unnecessary, while durable powers of attorney may make a conservator unnecessary. But these instruments may not have the final say. An individual serving as a power of attorney may not be acting in the ward’s best interests and may need to be removed. Ask an attorney for more information.
Contact Our Charleston Guardianship and Conservatorship Attorney
Guardianships and conservatorships can be complicated, but a knowledgeable attorney can help you and your family navigate the process. Rosen Hagood’s Probate and Estate Planning practice is ready to counsel you during this important phase in your loved one’s life. We’re here to answer your questions and serve your legal needs with the professionalism and compassion you deserve. Call us today to schedule your consultation.