In a guardianship, a court designates a person or organization to handle the affairs of an individual who is incapacitated or incompetent. Such a “protected person,” as defined by the courts, does not have the ability to make his or her own decisions relating to medical care, financial matters, safety and other key areas of life. A guardian typically will make decisions regarding a person’s medical care and where the person lives. A conservator will typically make financial decisions.
In Michigan, guardianships and conservatorships fall under the jurisdiction of probate courts, which designate responsibility for managing the affairs of an incapacitated person. If the protected person made arrangements in advance — by signing durable power of attorney agreements for medical care and finances — the individual named in the legal documents takes over management responsibilities.
If the incapacitated person failed to plan ahead, though, loved ones are forced to ask that a court designate a guardian or conservator.
How Does Guardianship and Conservatorship Work?
A court-appointed guardian or conservator has authority for making decisions about the personal affairs of a protected person. Guardians or conservators may receive payment for their services and reimbursement for any expenses from the protected person’s financial assets.
Conservators and guardians continue their role until a court orders that the responsibility ends, typically if the protected person passes away or no longer needs assistance. The relationship also may end if the conservator or guardian decides to resign and the court appoints another individual to act on the incapacitated individual’s behalf. A conservatorship also may end if the assets of the protected person are depleted.
Differences Between Conservatorship and Guardianship
Conservatorship and guardianship both are legally defined relationships between a protected individual and someone the court designates to make decisions for the protected individual. Conservatorship may refer primarily to management of financial affairs and property, while guardianship extends to management of any personal matters — including medical treatments and place of residence.
An individual appointed by a court to oversee financial matters sometimes is referred to as a “conservator of the estate.” An individual appointed to handle management decisions relating to personal matters and medical care may be referred to as a “conservator of the person.” The same individual can fulfill both roles and would be accountable to the court for the responsibilities of each role.
Courts typically set up conservatorships and guardianships for individuals suffering from advanced dementia or another serious illness.
Selecting a Guardian or Conservator
In Michigan, the process of selecting a conservator or guardian begins with a petition to the court stating the need for a guardian and or conservator to be appointed. In emergency situations, the petitioner must provide details about why conservatorship and or guardianship is needed right away. The court may appoint a temporary conservator or guardian, who visits the incapacitated individual, reports back to the court and takes action as directed by the court.
A written report from a medical professional who has examined the protected individual also is provided as documentation of the need for guardianship. After the guardian’s appointment, the court reviews the situation usually annually. The court also may appoint an individual to visit the incapacitated person and provide a recommendation on any needed modifications to the guardianship. Upon reviewing all evidence, the court may continue the guardianship or appoint a lawyer to represent the incapacitated individual in requesting a modification.
Complex Proceedings and Paperwork
Establishing a conservatorship can be complex and costly. If you feel that a loved one requires the assistance of a guardian or conservator, consider working with an experienced attorney who can handle the ongoing paperwork, detailed record-keeping, court filings and court appearances.
A court-appointed conservator will be supervised by the court and is required to provide periodic reports to avoid any mismanagement of property belonging to the incapacitated individual. In addition, conservators typically must request the court’s permission to make significant changes, such as selling property. Your attorney will review all paperwork submitted to the court and inform you if any action is needed on your part.
Should a guardian or conservator make poor choices regarding the finances or medical care of your loved one, your attorney will assist you in taking appropriate action to remove the individual.
Blocking a Conservatorship
It may be the case that you did not request a conservatorship for a loved one and that you do not agree that a need exists. Any individual — including family members and friends — may object to the court regarding the need for a conservatorship or the individual appointed as the conservator. An experienced attorney can assist you with filing the appropriate paperwork with the court, informing all the involved parties and attending hearings in court.
A better course of action, when possible, is avoiding the need for a conservatorship or guardianship in the first place. By working with an experienced estate planning attorney, you or your loved one can set up durable powers of attorney in advance of any health problems that could lead to incapacitation. Planning ahead allows you or your loved one to ensure that you decide who will make decisions should tragedy strike. For a free consultation, please contact Gold & Associates, P.C.