Guardianship and Conservatorship
When an adult fails to do his or her estate planning and then later becomes incapacitated, it may be necessary for the court to step in and place the adult under the care of another. This is called a guardianship. If the adult has financial assets, a conservatorship may also be needed. The court will assign a Conservator to oversee the financial assets of an adult who can no longer manage those assets. The role of guardian and conservator can be served by the same person or separate individuals as appropriate.
Incapacity often occurs due to cognitive decline from dementia due to Alzheimer's and Parkinson's disease, but can also be as a result of trauma, mental illness, and disease, most frequent of which is stroke. Individuals with special needs also need guardians to continue to care for them when they come of age.
A court determines if an adult is incapacitated by considering whether the adult can effectively receive and evaluate information about his or her health, well-being, and finances. Therefore, any physical or mental decline that results in the adult being unable to provide for his or her health, safety, and medical and financial needs may give rise to a guardianship and conservatorship.
It is important to note that with advance proper planning, including the execution of a properly drafted advance medical directive (also known as a living will) and a durable power of attorney, an adult can almost always avoid being placed under a guardianship (or conservatorship).
If you seek a guardianship of a loved one, we can help you navigate this emotional and complex process – please get in touch with us today.
