The Ins and Outs of Guardianship and Conservatorship

Every adult is assumed to be capable of making their own decisions unless a court determines otherwise.

If an adult becomes incapable of making responsible decisions, the court will appoint a substitute decision maker, usually called a guardian or conservator, depending on the state.

What Is Guardianship of an Adult?

Guardianship is a legal relationship between a competent adult (the guardian) and a person who is impaired in some way and no longer able to take care of their own affairs (the ward). 

The guardian can be authorized to make legal, financial, and health care decisions for the ward. Depending on the terms of the guardianship and state practices, the guardian may or may not have to seek court approval for various decisions. In many states, a person appointed only to handle finances is called a conservator.

Some incapacitated individuals can make responsible decisions in some areas of their lives but not others. In such cases, the court may give the guardian decision-making power over only those areas in which the incapacitated person is unable to make responsible decisions (limited guardianship). In other words, the guardian may exercise only those rights that have been removed from the ward and delegated to the guardian.

Incapacity in an Adult Guardianship

The standard to determine who requires a guardian differs from state to state. In some states, the standards may change, depending on whether a complete guardianship or a conservatorship over finances only is being sought. Generally, a person is judged to be in need of guardianship when they show a lack of capacity to make responsible decisions.

A person can't be declared incompetent simply because they make irresponsible or foolish decisions, but only if the person is shown to lack the capacity to make sound decisions. For example, a person may not be declared incompetent simply because they spend money in ways that seem odd to someone else. Also, a developmental disability or mental illness is not, by itself, enough to declare a person incompetent.

What Does the Process for Legal Guardianship for Adults Involve?

In most states, anyone interested in the proposed ward's well-being can request a guardianship. An estate planning or elder law attorney handling probate issues is usually retained to file a petition for a hearing in the probate court in the proposed ward's county of residence.

Protections for the proposed ward vary greatly from state to state. Some simply require that notice of the proceeding be provided, while others require the proposed ward's presence at the hearing. The proposed ward is usually entitled to legal representation at the hearing, and the court will appoint an attorney if the allegedly incapacitated person can't afford a lawyer.

At the hearing, the court attempts to determine if the proposed ward is incapacitated and, if so, to what extent the individual requires assistance. If the court determines that the proposed ward is indeed incapacitated, the court then decides if the person seeking the role of guardian will be a responsible guardian.

Who Can Be a Guardian?

A guardian can be any competent adult — the ward's spouse, another family member, a friend, a neighbor, or a professional guardian (an unrelated person who has received special training). A competent individual may nominate a proposed guardian through a durable power of attorney in case they ever need a guardian. Doing so will avoid probate proceedings for guardianship in the future.

The guardian need not be a person at all — it can be a nonprofit agency or a public or private corporation. If a person is found to be incapacitated and a suitable guardian can't be found, courts in many states can appoint a public guardian from an agency that serves this purpose. In naming someone to serve as a guardian, courts give first consideration to those who play a significant role in the ward's life — people who are both aware of and sensitive to the ward's needs and preferences. If two individuals wish to share guardianship duties, courts can name co-guardians.

Reporting Requirements for Guardians

Courts often give guardians broad authority to manage the ward's affairs. In addition to lacking the power to decide how money is spent or managed, where to live, and what medical care they should receive, wards also may not have the right to vote, marry or divorce, or carry a driver's license.

Guardians are expected to act in the best interests of the ward, but given the guardian's often broad authority, there is the potential for abuse. For this reason, courts hold guardians accountable for their actions to ensure that they don't take advantage of or neglect the ward.

A guardian of property inventories the ward's property, invests the ward's funds so that they can be used for the ward's support, and files regular, detailed reports with the court.

A guardian of the property also must obtain court approval for certain financial transactions. Guardians must file an annual account of how they have handled the ward's finances. In some states, guardians must also give an annual report on the ward's status.

Guardians must offer proof that they made adequate residential arrangements for the ward, that they provided sufficient health care and treatment services, and that they made available educational and training programs as needed. Guardians who can't prove that they have adequately cared for the ward may be removed and replaced by another guardian.

Alternatives to Guardianship

Because guardianship involves a profound loss of freedom and dignity, state laws require that guardianship be imposed only when less restrictive alternatives have been tried and proven to be ineffective. Less restrictive alternatives that should be considered before pursuing guardianship include:

• Power of Attorney. A power of attorney is the grant of legal rights and powers by a person (the principal) to another (the agent or attorney-in-fact). The attorney-in-fact, in effect, stands in the shoes of the principal and acts for them on financial, business, or other matters. In most cases, even when the power of attorney is immediately effective, the principal does not intend for it to be used unless and until they become incapacitated.
• Representative or Protective Payee. This is a person appointed to manage Social Security, Veterans' Administration, Railroad Retirement, welfare, or other state or federal benefits or entitlement program payments on behalf of an individual.
• Conservatorship. In some states, this proceeding can be voluntary, where the person needing assistance with finances petitions the probate court to appoint a specific person (the conservator) to manage their financial affairs. The court must determine that the conservatee is unable to manage their own financial affairs, but nevertheless has the capacity to make the decision to have a conservator appointed to handle their affairs.
• Revocable trust. A revocable or living trust can be set up to hold an older person's assets, with a relative, friend, or financial institution serving as trustee. Alternatively, the older person can be a co-trustee of the trust with another individual who will take over the trustee duties should the older person become incapacitated.

To contact an attorney to discuss ways to protect against guardianship, find an elder law attorney near you.