Guardianship

A person (called a Guardian) is appointed by the Probate Court with authority to make all decisions about the care and custody of an incapacitated person (called the Ward). A petition must be filed with the court and a hearing held. The Ward loses all civil rights such as the right to determine where to live, the right to request or refuse medical treatment, the right to vote or make a contract, and the like. The guardian must make annual reports to the court regarding the status of the Ward. In some situations it is appropriate for the court to appoint a Limited Guardian who is given authority to make decisions in only those areas that the court specifies.

Conservatorship

A person (called a Conservator) is appointed by the Probate Court with complete authority to manage and control the financial affairs of a disabled person (called the Protectee). The Protectee loses all rights with regard to finances. A petition is filed with the court and a hearing held. The Conservator must make an annual accounting to the court regarding all money coming in and going out of the Protectee's estate. In some situations it is appropriate for the court to appoint a Limited Conservator who is given authority to make decisions about only those financial matters that the court specifies.

Why and when to use

There are many situations where Guardianships and/or Conservatorships can be helpful; some are:

Use of Guardianship

• To protect a loved one who is not able to care for him/herself; For example, to protect a loved one who refuses to take necessary medications.
• To prevent serious injury, illness or disease to self or others. For example, guardianship is helpful where a person is not feeding him/herself or is unable to prepare meals.
• To provide safe and clean shelter to a person who can not care for themselves or their residence.

Use of Conservatorship

• To protect assets from financial abuse and fraud. Disabled persons can be easy targets for abuse and fraud by strangers and, unfortunately, even by family members. Use a conservatorship to stop financial abuse and fraud.
• To protect and preserve an estate from waste. In the event a loved one is unable to make proper financial decisions, use a conservatorship to stop waste of necessary assets so as to preserve the estate for the ward's well being. For example: if a person cannot understand the nature of his/her assets or how to pay necessary expenses, a conservatorship can be used to protect the estate.
• To manage an estate where a disabled person is unable to manage his/her own affairs.
• To avoid family feuding/conflict about control of a loved ones estate.

Downside of Guardianship and Conservatorship

1. Probate Court process can be expensive. Some living probate proceedings are very expensive; many are reasonable, but they all add an expense which must be considered. Contact an experienced attorney to help estimate the expected expense and advise as to the benefits of proceeding.
   
   
2. A stranger can be appointed to make decisions about your care and/or your financial affairs.
   
   
3. Your business affairs become public record.
   
   
4. Investment options are restricted.

Contact Oelbaum & Brown to learn about how to avoid strangers handling your personal affairs, and to avoid the expense and restrictions of living probate. We can help you plan for incapacity and avoid or minimize these risks or how to use them to your advantage. If, however, pre-planning has not been done and you find that a guardianship or conservatorship is needed, we can help stabilize the situation and protect your loved one.