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Is a Conservatorship or Guardianship Needed?

April 12, 2017

 

 

 

Conservatorships and/or guardianships are generally enforced for severely mentally ill individuals, those who are gravely disabled, individuals with developmental disabilities, and elderly adults with dementia or Alzheimer's disease who lack the capacity to properly care for themselves or who have physical health care issues needing assistance.  With a conservatorship or guardianship case, mental capacity or physical limitations can be evaluated and determined by experts in the medical field or the field of psychiatry with their findings being admitted into court as evidence.

If your family member is unable to make legal decisions on their behalf, we urge you to schedule a consultation to discuss the possibility of conservatorship.  Our team understands how unfamiliar and overwhelming these matters can be.  If you are looking to seek a conservatorship or guardianship so that you can insure that your loved one is receiving proper care, we can be of service.  Padgett Services, LLC, can do the hard work and help you to just enjoy your time with your loved one and not have the headache of the day to day care for them.  

In general, conservatorship is only granted over an estate if the protected person has assets that need to be managed and protected. A conservator's duties may include the following:

Locating and controlling assets and property that belong to the protected person
Using those assets to buy food for the protected person
Securing and paying for placement in a facility if needed which will take care of the protected person
Paying the protected person's bills
Managing the protected person's real estate property and paying their property insurance
Paying the protected person's mortgage or rent
Paying for maintenance of the protected person's property

A guardian makes the personal life decisions and has medical responsibilities.  In general a guardianship is granted if the protected person is determined to be a danger to themselves or are unable to make reasonable and proper decisions about their personal care and personal life.

There may be several reasons why someone would want to establish a conservatorship and/or guardianship.  For example, someone may have a parent or sibling who is severely handicapped, an elderly person is giving away money, or not properly caring for themself, or, elderly person knows that they are starting to having difficulties, they can appoint or nominate someone they trust as their conservator and/or guardian while they still have legal capacity.  

The only safe way to protect a vulnerable adult is through guardianship and/or conservatorship proceedings.  This is a legal proceeding in the circuit court in which a someone is appointed to exercise the legal rights of an incapacitated person.  A guardian or conservator is an individual or institution (such as Padgett Services, LLC) appointed by the court to care for an incapacitated person — called a "protected person" or for the protected person’s assets." 

Both proceedings involve someone asking for a decision-maker to be appointed because the protected person in need of protection is unable to make or communicate informed decisions.  Guardians make medical, placement and other personal decisions, while Conservators handle the finances. One person often serves in both roles at the same time, but courts can appoint different people as well.

Any adult may file a petition to determine another person’s incapacity with the court setting forth the factual information upon which they base their belief that the person is incapacitated. 

The court then appoints a visitor and asks for reports from physicians or another person who by knowledge, skill, training or education can form an expert opinion.  The examination of the incapacitated person normally includes 1) a physical examination, 2) a mental health examination, 3) a functional assessment, and the court visitor visits with the protected person, all family members and interested parties.

The court could appoint an attorney to represent the person alleged to be incapacitated; however, the alleged incapacitated person may substitute his or her own attorney for the attorney appointed by the court.  If the visitor and medical professionals conclude that the alleged incapacitated person is not incapacitated in any respect, the judge is required to dismiss the petition.  If it is found that the person is unable to exercise certain rights, however, the court schedules a hearing to determine whether the person is totally or partially incapacitated.  If a person is found to be incapacitated in any respect, a guardian and/or conservator is appointed at the end of the incapacity hearing unless there are lesser restrictive alternatives which adequately address the person’s incapacity."

What if your parent, or someone else in the family, disagrees that a guardian or conservator is necessary?  Judges will examine whatever records you can present them with, including medical and financial records, as well as listen to family members and others who give testimony about why the person needs help making decisions.  

Judges do not take this decision lightly; they have to find clear and convincing evidence to take away someone’s legal right to make their own decisions.  But Judges do worry about whether the person is making safe choices.  The best interest of the vulnerable person is most important.  Often, whether a guardian or conservator is needed is the easy part. 

Regardless of the reason for deciding to establish a guardianship and/or conservatorship, there are several requirements that must be satisfied before a guardian or conservator can be appointed.  When selecting a guardian or conservator, there are several steps that must be taken.  The potential guardian or conservator must petition to the court stating why they are the best choice to serve as guardian or conservator of this particular person.  The potential guardian or conservator may be subject to submitting to a background check, including a criminal and credit background check and may need to post a bond.

And, the protected person’s choice does matter!  This is especially true for someone with early stages Alzheimer’s or dementia who still retains some decision-making ability but requires assistance.  Even an incompetent person’s choice will carry great weight if it was expressed when the person was still competent.  In fact, probate judges usually honor the protected person’s preference in most cases.

This choice is not set in stone however. Probate judges do have a large amount of discretion in making this important choice, and will usually decide based on what is in the best interests of the protected person.

Once a guardian or conservator is appointed by the court, they receive Letters Testamentary from the court.  Also, the guardian or conservator is responsible for filing other documents at the onset of the guardianship, such as the Care Plan, the an accounting, and the Initial Inventory.  Each year, there are several documents that
filed so that the court is aware that the guardian or conservator is doing their job.

The process is not an easy one and can quickly get confusing. If deadlines are not met for each yearly filing, a guardian/conservator’s duties can quickly be called into question.  A professional guardian or conservator and assistance from their attorneys are critical in order to meet deadlines, properly filing documents, and answer any potential questions family members or protected persons may have.

How does the judge decide when the family fights about who is most suitable?  Often siblings both feel they would be the best choice.  Second marriages present significant difficulties when the spouse of the incompetent person does not get along well with the children from the prior marriage.  Sometimes, there is even a fight between the protected person and his or her own children.  This is when a professional guardian or conservator can help a family, they listen to everyone but their main focus is to make the best decision for the protected person while the family can maintain the closeness and have equal input.

The best way to protect yourself – and more important, protect your elderly loved one and your family relationship – is to have an experienced professional appointed. 

Certainly, no one should choose to initiate a guardianship or conservatorship proceeding unless they have no other good choice.  But when diplomacy has failed, or when a loved one’s Alzheimer’s, dementia or other condition causes them to be too stubborn to admit that they need help making decisions, this path is the only safe choice.  With an experienced professional guiding the family, protective proceedings through the court help many people sleep at night knowing their loved one is safe.

REASONS TO CHOOSE PSL

We will work with the protected person and family to provide the most least restrictive environment for the protected person.
We believe family input is important and necessary.
We pride ourselves on delivering an exceptional experience and work to safeguard the  protected person’s needs at all times.

If we can assist you with your guardianship questions or needs please feel free to call or message us.  

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