What is guardianship and conservatorship? Here at the Meurer Law Offices in Denver, we want to share some information about these roles and how they apply in elder law. In the eyes of the law, every adult is considered to be capable of reasonable making decisions for themselves unless a court deems otherwise. In some states, if a court finds that an adult is incapable of doing so, a substitute decision maker is appointed for them. The substitute is often referred to as a guardian. In some states and situations, they’re called conservators.
Guardianship and Conservatorship
These are legally defined relationships between a competent adult and a ward, who is the adult who is no longer capable of caring for their own affairs. Guardians are often appointed in cases of Alzheimer’s or other debilitating diseases, as well as other demonstrable cases. Depending on the state and terms of the guardianship or conservatorship, the responsible person may be authorized to make financial, legal, and healthcare decisions. In many states, a conservator may refer to a person who is only responsible for the financial decisions.
If a court determines that a ward is capable of independently making some decisions, it may award a limited guardianship instead of a full guardianship.
Standards of Capacity or Incapacity
Each state has standards for determining whether a person needs a guardian. If a person is attempting a guardianship or conservatorship over finances only, the standard is likely different than what is used for full guardianship. It is important to understand that foolish or irresponsible decisions do not mean that someone is incapable of making decisions and developmental problems or mental illness are not sufficient evidence of a lack of capacity.
The court will want to determine if there is a lack of capacity to make decisions which is different from simply having a history of bad choices. Additionally, a determination of incapacity is not always permanent.
In many states, anyone interested in the well-being of a proposed ward can seek to become a guardian. Generally, an attorney is hired to file a petition for a probate court hearing in the potential ward’s county of residence. The proposed ward is usually allowed their own legal representation as well. Different states have different protections for the proposed ward. In Colorado, the laws are actually designed to be more in favor of the potential ward rather than the person seeking to protect them.
Some courts may only notify the proposed ward of the hearing, while other courts require the ward’s presence before determining a guardianship or conservatorship. If the proposed ward is unable to hire an attorney due to their financials, the court will provide one.
In court, the hearing will first determine whether a potential ward is indeed incapacitated. The extent of their incapacitation will also be ascertained. Once these two determinations have been made, the court will decide whether the person who is requesting to be made the guardian should be appointed. Guardianship is generally only imposed when less restrictive alternatives have proven to be ineffective.
If you need to start the process of seeking guardianship or are the respondent, contact us here at the Meurer Law Offices in Denver. We are experienced at working with both sides of this often contentious issue. Let us provide the guidance and representation you need.
Guardians and Conservators
Any competent adult can be made a guardian. Often, spouses, family members, friends and professional guardians are awarded guardianship. Any adult who is competent may be able to choose a guardian in advance of needing one via medical healthcare power of attorney. Having a durable power of attorney in place can facilitate the guardianship process and helps ensure that a person you trust will become your guardian.
A guardian doesn’t necessarily need to be a person. A guardian could be a corporation (public or private) or a non-profit organization. Courts can also appoint co-guardians in instances where potential guardians would prefer to share the responsibility. In cases where a suitable guardian cannot be found for an incapacitated person, the court will appoint a public guardian which is usually a public agency.
When determining a guardianship and conservatorship, the courts will first consider those who already have a significant role in the ward’s life. These are people who are already concerned and aware of the ward’s preferences and needs.
Guardians can be given a wide range of responsibilities and authority for their ward. They should always act in their ward’s best interest, and to ensure they’re doing so, the court monitors a guardian’s actions. Guardians are expected to file reports of certain activities and in some states, the ward’s overall status. Guardians often must provide proof that they have provided sufficient care, including residential arrangements, financial responsibility (if no conservator), healthcare, appropriate treatment, and more.
Guardians who cannot prove adequate care of their ward may lose their guardianship or conservatorship status and be replaced by a new guardian.
Loss of Freedom
Wards may lose the power to decide how their money is spent, what medical care to pursue, as well as where to live. Additionally, they may lose the right to vote, carry a driver’s license, marry, and/or divorce. Becoming a ward is a great loss of freedom and independence. This is part of the reason courts do not take this matter lightly and hold guardians accountable.
Prior to a guardianship and conservatorship, there are other less intrusive alternatives to pursue. Here are a few of the possibilities:
- Power of Attorney, Financial and/or Healthcare
- Representative or Protective Payee
- Revocable Trust
What is guardianship and conservatorship? They are court-appointed persons that ensure an incapacitated individual receives proper care. If you think you may need to pursue guardianship or conservatorship for a loved one or want to prepare for your own needs if you become incapacitated, contact us here at the Meurer Law Offices in Denver. We can help you determine the best course of action and take the appropriate legal steps to ensure that you or a loved one is in good hands.