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B. Guardianship / Conservatorship

B. Guardianship / Conservatorship.

An unfortunate fact of life for the elderly is the possibility of mental and/or physical incapacity. Guardianship / Conservatorship involves a proceeding in court, and can be the less desirable alternative to advance planning for disability, with a Durable POA or living Trust. Terminology varies among the states, but generally, “guardianship” refers to the overall care and custody of a person who needs protection, as well as his/her property. “Conservatorship” generally refers to custody and control only of the money and property of the protected person.

The relationship of the guardian or conservator to the person in his/her care (the ward) is much like that of parent to child. The law, quite rightly, considers it a very big deal to strip an adult of independence and impose on him/her that relationship.

For this reason, the process of obtaining court appointment as a guardian or conservator necessarily involves some time and money. Details vary by state, but there is probably an office in the local county court that handles guardianship. The first step is a “petition” to the court by someone, asking to be appointed. In some areas, the court clerk’s office has blank forms and instructions so that people need not hire an attorney, but usually you will need one.

What happens next accounts for the unavoidable delay, and perhaps, expense. Although most people act with the best of motives, the court must make a serious inquiry into the necessity of full guardianship, or of guardianship limited to either the ward’s person or property (e.g., a conservatorship), as appropriate. Sometimes, for example, life would be more “convenient” for an adult child care giver if he/she were the parent’s legal guardian. That would not suffice, however, if the child sought guardianship and the parent objected.

The court will generally require a hearing, at which some kind of evaluation of the disabled person by medical and/or mental health professionals must be presented. Often, the petitioner seeking guardianship must make arrangements and pay for the examination(s) and reports. Additionally, in most places, a lawyer is appointed by the court to represent disabled persons. This is a further safeguard that no competent person will be “railroaded” just because he/she is too weak or intimidated to speak out.

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