Guardianships & Conservatorships

Guardianship and conservatorship are legal relationships created by the Probate Court giving one person (the guardian or conservator) the power to make decisions for another (the ward). Guardians have authority over only personal and medical decisions and conservators have authority over only financial decisions. A Probate Court may appoint a guardian or conservator if the court determines that an individual is incapacitated to such degree as to be unable to care for himself or herself or his or her assets.

Guardianship or conservatorship is appropriate when impaired judgment or capacity poses a major threat to a person’s welfare. A medical evaluation by a licensed physician is necessary to establish the proposed ward’s condition. However, only a court can determine the need for a guardian or conservator.

Assuming that a physician is prepared to attest to the proposed ward’s incompetence, the first step is the filing of a petition with the Probate Court requesting the appointment of a guardian. Two individuals must sign the petition and the proposed guardian must file a bond with the court. Notice of the proceeding must be given to the proposed ward, the heirs of the proposed ward, the person with whom the proposed ward lives, the proposed ward’s agents under any durable power of attorney or health care proxy and such other persons as the court directs. The court sets a date by which anyone wishing to object, including the proposed ward, must do so. Then a hearing is held, following which a judge decides whether a guardian or conservator should appointed. The court can name one individual to serve as both guardian and conservator, or can name different individuals to serve in each role.

A temporary appointment can last up to 90 days. A permanent appointment may last until the death of the ward, until the ward is able to establish that he or she is competent, or until the guardian or conservator dies, resigns or is removed by the Probate Court.

Unless limited by the court, a guardian has total control of the personal decisions of the ward and a conservator has authority over all financial decisions. This includes deciding where the ward will live, determining how the ward’s funds will be spent and making routine medical decisions for the ward. Separate court approval is required for medical decisions involving extraordinary medical care, nursing home admission, the administration of anti-psychotic drugs, commitment to a mental health facility, sale of the ward’s real estate, the making of gifts of the ward’s property or implementing an estate plan for the ward.

In addition to seeking court approval for the major medical decisions as described above, a guardian must report to the court regarding the ward’s care and living situation. A conservator must account carefully for all the ward’s income and for any expenditures made on his or her behalf. This is accomplished by a conservator’s filing with the court an inventory listing the ward’s assets as of the date of appointment and by filing with the court annual accounts detailing all the ward’s income and expenses. A final account must be filed when the conservatorship is terminated. A conservator is liable for his or her actions until the court allows (approves) the account.

There are several less restrictive alternatives to guardianship or conservatorship. These include durable powers of attorney, representative payees, trusts and health care proxies. Each of these options may avoid or postpone the need for a guardian or conservator. However, these documents must be executed before the individual becomes incapable of doing so by reason of mental impairment.