Guardianship and Conservatorship
When an adult fails to do his or her estate planning and then later becomes incapacitated, it may be necessary for the court to step in and place the adult under the care of another. This is called a guardianship. If the adult has financial assets, a conservatorship may also be needed. Conservators are assigned by the court to oversee the financial assets of an adult who can no longer manage those assets. The role of guardian and conservator can be served by the same person or separate individuals as appropriate.
Incapacity often occurs due to cognitive decline from dementia due to Alzheimer’s and Parkinson’s disease, but can also be as a result of trauma, mental illness, and disease, most frequent of which is stroke. Individuals with special needs also need guardians to continue to care for them when they come of age.
A court determines if an adult is incapacitated by considering whether the adult is capable of effectively receiving and evaluating information about his or her health, well-being, and finances. Any physical or mental decline that results in the adult being unable to provide for his or her own health, safety, and medical and financial needs may give rise to a guardianship and conservatorship.
It is important to note that with advance proper planning, including the execution of a properly drafted advance medical directive (also known as a living will) and a durable power of attorney, a guardianship (and conservatorship) can almost always be avoided.
If you are seeking a guardianship of a loved one, I can help you navigate through this emotional and complex process – please contact me today.