Conservatorships & Guardianships

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Conservatorships and guardianships are largely the same thing in terms of duties and responsibilities of the person appointed to oversee an incompetent. Incompetent in legal terms means either (a) someone who has been declared incompetent by a court of jurisdiction, or (b) anyone under the age of 18 years who has not been by court order emancipated.

Conservatorships are the proceedings we most often see when one becomes incompetent or disabled and does not have a durable power of attorney or living will. This is why it is very important to have a durable power of attorney and living will in place and where responsible adults can retrieve it and use it for your benefit.

If a conservatorship proceeding is necessary, one of your relatives or another interested party will sue you in probate court. The court appoints an attorney called a guardian ad litem to do an independent investigation. You have the option of being represented by counsel to resist the conservatorship should you so desire and there must be a doctor or clinical psychologist to certify your incompetency or disability by clear and convincing evidence for the court’s consideration. If a conservatorship is established, the named conservator will be under strict supervision by the Court and will be required in most circumstances to post bond, file annual accountings, and to take care of all financial and personal business of the disabled or incompetent person.

These proceedings are extremely expensive and can be divisive amongst family members and embarrassing for individuals.

Guardianships are established for veterans in many circumstances because of specialized benefits which they receive and for minor children who receive money or property by virtue of inheritance or even a personal injury settlement. Typically property for minors is managed for their benefit until they turn 18 and the property is turned over to the minor. The court supervision of guardianships is just as strict as it is for conservatorships, depending on the purpose of the guardianship.