12 Sep Guardianship and Conservatorship FAQ: 9 Frequently Asked Questions
1. What is the purpose behind a guardianship or conservatorship?
Guardianships and conservatorships are actions of last resort to manage an incompetent or incapacitated person’s personal and financial affairs if that person is unable to do so due to mental or physical illness, disability or incompetency. These proceedings can be used both for incompetent adults (over age 18), and minor children, whether competent or incompetent (under age 18)*.
2. What is the difference between a guardianship and a conservatorship?
A “guardianship” is control over an incompetent adult’s or a minor’s personal and medical affairs. A “conservatorship” is control over an incompetent adult’s or a minor’s financial affairs. The incompetent person is termed the “ward”, and the person appointed on his or her behalf is termed either (or both) the “guardian” or “conservator”.
3. Can you have one without the other?
They generally go together, but it is possible to have either a stand alone guardianship, or a stand alone conservatorship. Where both exist, the guardian and conservator is often the same person, although it is possible to have different persons in each role.
4. Are there ways to avoid having to do a guardianship or conservatorship?
Generally, where a person has in place a valid Power of Attorney and Advance Directive for Health Care, a guardianship and conservatorship is not needed, because the agent has been empowered to act on the incompetent individual’s behalf. Obviously, if the person has no such document, or has always been incompetent (e.g. a special needs child), a guardianship/conservatorship is the only option to obtain this legal authority.
In other words, once a person has become incompetent, it is too late for that person to sign a Power of Attorney or Health Directive, and guardianship and conservatorship is then the only option.
Guardianships/conservatorships are cumbersome because they require a court supervised process, which is also of public record. A guardian/conservator must petition the court, have a hearing to determine incompetency, post a bond and annually report to the court. A guardianship/conservatorship revokes all legal rights of the individual, either as to personal decisions in a guardianship, or over their financial affairs in a conservatorship.
5. Is it necessary to put a guardianship or conservatorship in place for an incompetent adult child if the parent is the caregiver?
Almost always. As the child ages it can become more important. While your local health care provider with whom you’ve always dealt may recognize that you are the parent and have always made the decisions, this may not always be true, particularly in light of recent (and continuing) changes in health care and privacy laws. Likewise, while the social security administration may allow you to be the representative payee, this will generally not be the case with other agencies or in dealing with any other funds the ward may come in to.
6. Why would I ever need to be conservator of my own minor child who is not incompetent or special needs?
Generally, you would not. However, the need can arise in numerous situations. For example, if property is deeded to a minor, it can’t be sold on the minor’s behalf without a conservatorship. Additionally, if there has been an accident or injury in which the child is entitled to a settlement, a conservatorship is often required.
7. Can I just give someone guardianship over me?
No. You can give someone authority to make business and financial decisions for you with a power of attorney, and you can give someone authority to make health decisions for you with an Advance Directive for Healthcare (provided you are competent when you sign the documents!). However, neither of these documents take away your right to make your own decisions. A guardianship or a conservatorship is a legal process in which your legal right to make these decisions is taken away by a court.
8. Can anyone be the guardian or conservator or are there any limitations?
There are limitations.
A court will be most inclined to appoint a family member, unless there are shown reasons why this would not be in the ward’s best interest. Things that can impact the ability to be appointed guardian or conservator include a prior criminal history, conflict among multiple persons seeking appointment, poor credit score, and other factors. Furthermore, a Conservator must be bonded, and will have to pay an annual premium to maintain the bond.
It is possible to have one person serving as guardian and a different person as conservator.
9. Is the process time consuming and expensive?
As noted above, it is a formal and solemn legal process. For that reason, it admittedly is not inexpensive. These proceedings, if uncontested, frequently range in cost from $3,000 to $5,000 (or more depending on complexity), plus filing fees, and can be significantly more expensive if contested by the proposed Ward or other family members.
*age 19 in Alabama