GUARDIANSHIPS & CONSERVATORS
In certain situations it becomes necessary to request the courts to appoint a guardian or custodian over the person and/or the property of a person you love. Usually the court that will have jurisdiction to appoint guardians or conservators over persons is the probate division of the county where the (allegedly) incapacitated person resides. Some frequent examples of instances where a guardianship or conservator is necessary are:
- In the case of a minor child that will acquire property or money from a lawsuit or as part of an inheritance. Minors are legally unable to manage or handle their own property or to approve settlements in lawsuits, so when he or she receives property or is a party in a lawsuit it becomes necessary to appoint a responsible person to manage that property for them until such time as they are able to do so for themselves. By law, a minor’s parents are her natural guardians and they will have priority in the appointment of a guardian over that child’s property whenever it becomes necessary. If the parents are unable to serve for any reason, including if they are dead or missing, that appointee will step into that child’s shoes and will have court authorization to act for his or her behalf. The guardian can be a family member or a responsible adult who is close to the minor and that person will be required to follow a set of laws in administering that minor’s property that ensures that it is managed properly and for that minor’s benefit. Guardianship’s over minors will subject the management of the minor’s property to strict scrutiny by the court until that minor becomes legally able to manage their own property at which point the property is handed over and the case can be terminated. In certain situations where it is anticipated that a minor child could receive property (for example from an inheritance), it is possible to plan ahead and bypass the need for a court appointed guardian by creating a special testamentary trust in the decedent’s will that will capture that minor’s property and will appoint a trustee to manage it for her benefit and under the conditions set forth in the trust.
- In the case of an adult who is no longer able to manage his own affairs due to physical or mental conditions such as Alzheimer’s or dementia. Aging adults who are unable to make their own decisions regarding health care or property can have a guardian or custodian appointed for him or her by the probate court. The petitioning party is usually a loved one who is concerned, but in certain situations the State or another interested party can request the court to make the appointment if certain conditions are met. A guardianship or conservatorship over an adult has the effect of stripping away some very important legal rights and placing that person’s legal decisions in the hands of the guardian or conservator. The court process for the appointment is very tedious and the court will likely appoint a guardian or attorney ad litem to represent or safeguard that subject person’s interests and legal rights during the pending proceedings and to ensure that the reason for the appointment is reasonable and that the AIP’s rights are protected. In the case of elderly adults, it is possible to bypass the need for the eventual appointment of a guardian or conservator with proper estate planning documents executed while still of sound mind and which appoint person(s) to manage their legal and health care related affairs in the event of sickness. With sound planning, it is also possible for competent adults to take the extra step of placing all their assets in a trust and appointing a successor trustee who will manage their assets for their benefit once they are unable to do so for themselves.
- In the case of an intellectually and developmentally disabled person diagnosed with conditions such as Autism, Down syndrome, and other (IDD) genetic conditions that can challenge an individual’s ability to manage their own legal or medical affairs.
Guardianships and conservatorships are lengthy court proceedings that should not be attempted without the assistance of a skilled attorney. It is possible to challenge the filing of a guardianship or conservatorship over a loved one or family member especially if you are concerned over the appointee and whether that person has the ward’s best interest at heart.