Guardians and conservators are appointed to protect an incapacitated person. A guardian is in charge of a person’s personal affairs and is termed a “guardian of the body.” A conservator is responsible for managing a person’s financial affairs. An incapacitated person is someone who cannot make decisions for her/himself or makes decisions that might be harmful.
When it is deemed that a person needs a guardian or conservator, the court is petitioned (by family or social services most commonly) and a judge decides if the person is truly incapacitated. Only a judge can appoint a conservator or guardian, and the process can be long, emotional, difficult, expensive, humiliating, and unsuccessful.
Types of Guardians and Conservators
Some types of guardians and conservators are:
Emergency or Temporary Guardian. Appointed for a limited period of time for emergencies such as a person too sick to make medical decisions for themselves.
Limited Guardian. Appointed for a specific matter such as a person who is able to care for her/himself on a daily basis but is unable to make medical decisions.
Limited Conservator. Appointed for a specific financial matter. A limited guardian may be appointed for a person who, though they are able to pay their ordinary expenses, will be unable to manage an expected inheritance.
Standby Guardian. Appointed to become the guardian when the individual who is currently responsible for providing care dies. A standby guardian may be appointed when the death of a parent caring for an incapacitated child is expected.
When Guardianship Is Necessary
The situations that may necessitate guardianship of someone can be complex, but in general, it may be necessary to petition the court to appoint a legal guardian in the following instances:
- When a person has difficulty making decisions and s/he might come to some harm as a result or is unable to provide for her/his basic needs as a result; and
- When a person refuses to accept assistance or support services to protect her/him from harm, or
- When help that is being provided is not enough to protect the person from harm, or
- When a person has not previously appointed an attorney-in-fact (power of attorney), or the individual appointed refuses to act or is not acting in the person’s best interests; and
- When the person’s health and will being are in imminent danger, and decisions about medical treatment, placement, and/or finances must be made
Guardianship proceedings should be considered only as a last resort. They can be avoided by proper estate planning.