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Conservatorship of an Adult – HG.org
When individuals lose the ability to manage their assets or make personal decisions, family members or other interested persons may petition the proper court for a guardianship or conservatorship. A guardian or conservator is a court appointed fiduciary obligated to make decisions that serve the best interest of the person.
A high percentage of guardianship or conservatorship cases involve an elderly person suffering from dementia, Alzheimer’s or other diseases resulting in significant mental deterioration.
State Authority
Guardianship and conservatorship proceedings are governed by state law. The state’s power to intervene in the private lives of incapacitated individuals for their protection rose from the common law doctrine of parens patriae. This doctrine allows the state to act on behalf of its citizens who are unable to act for themselves. Today, all states have codified this power in guardianship and conservatorship statutes.
Uniform Veterans Guardianship Act (UVGA)
Some states have adopted the Uniform Veterans Guardianship Act (UVGA) to govern guardianship proceedings involving certain veterans. The UVGA makes the Administrator of Veterans Affairs a party in interest in a proceeding for the appointment or removal of a guardian of a ward who receives veteran’s benefits.
In 1988 there was a substantial reform of state guardianship and conservatorship statutory provisions designed to ensure that a respondent receives procedural due process, and that judicial determinations restrict an incapacitated person’s autonomy to further his best interests.
Types of Guardianships
Courts prefer to use the least restrictive option that will adequately protect the alleged incompetent person (AIP). Some courts describe the AIP as the ‘‘individual at risk,’’ the conservatee, or the ward; in guardianship proceedings the AIP is sometimes called the respondent.
Options available under state law may include:
Guardian at Litem: a guardian appointed by the court to protect the individual’s rights during litigation.
Co-Guardians: guardians acting at the same time. They may serve separate functions, such as a guardian of the person (responsible for the physical well-being of the ward) and a conservator of the estate (responsible for property). If they serve the same function, consider whether one can act independently of the other(s).
Emergency Guardian (sometimes called a special medical guardian): a guardian typically appointed to consent to medical treatment for the individual. This is a temporary appointment.
Limited or Partial Guardianship: a guardianship that covers specific functions (less than plenary guardianship).
Plenary Guardianship: a guardianship that covers all matters.
Stand-by Guardian: a guardian who is not currently authorized to act; typically named by a spouse or parent currently acting as guardian, to act if current guardian does not.
Successor Guardian: after adjudication, an individual without capacity cannot be left without a guardian. A successor guardian will act if guardian cannot or does not act.
Temporary Guardianship: guardianship that may be available in emergency situations, without a full hearing for example, if the individual needs immediate medical decisions or is otherwise at risk.
Jurisdiction and Venue
Jurisdiction refers to the power of a court to make an enforceable ruling in a case. Once the court system with jurisdiction is identified, venue can be determined to identify the proper court within that system. Many states will exercise jurisdiction in a guardianship case if the disabled individual is domiciled or is physically present in that state. Most states will exercise jurisdiction to appoint a conservator if the individual is domiciled or has property in the state. Conflicts can arise if the individual is physically located in a state other than his domicile or if there is uncertainty about domicile, perhaps because the individual owns property in more than one state.
Uniform Probate Code
Under the Uniform Probate Code, a conservator is a person who is appointed by a court to manage the estate of a protected person. A guardian is a person appointed by a court to make personal decisions for a ward. A respondent is an individual for whom a guardianship, conservatorship, or other protective order is sought.
Under the UPC, the appointment of a conservator is not a determination of incapacity. As such, the UPC permits the appointment of a conservator only when the protected person is at least partly incapable of managing her estate.
The UPC provisions permit the use of guardianships and conservatorships as a last resort, when no less restrictive alternative will meet the needs of the respondent.
When should a guardian or conservator be appointed?
The UPC finds individuals incapacitated when they are unable to receive and evaluate information or communicate a decision to the extent the individuals lack the ability to meet requirements for physical health, safety, or selfcare. A determination of incapacity under this definition requires an assessment of the individual’s functional abilities.
Petition and Proceeding
A conservatorship or guardianship proceeding begins with the filing of a petition in the appropriate court. In most states these proceedings are handled in probate court. The venue of the protective proceeding is in the county where the respondent resides.
If the petitioner is seeking the appointment of a fiduciary to make personal decisions and manage the property of the respondent, one petition can consolidate both requests. The UPC and the laws of some states permit a voluntary petition to be filed by an individual seeking the appointment of a guardianship or conservatorship for himself.
The petition must state the reason why the guardianship is necessary, provide a descriiption of the incapacity, and identify the proposed guardian. The UPC requires the petitioner to prove incapacity in a guardianship proceeding by a preponderance of the evidence.
The petitioner is not always the proposed guardian. For example, a concerned friend or neighbor who is unqualified or unable to act as guardian might want to get help. A common situation involves an older person who is taken to the hospital and is ready for discharge but is unable to care for himself and unable to consent to or obtain benefits to pay for residential care. If no friend or relative is available, the hospital might petition for appointment of a temporary guardian to serve those functions.
Due Process Protections
In the past, guardianship proceedings were often seen as non-adversarial. Courts focused on the state’s inherent parens patriae power to protect individuals and did not adhere to procedures employed in adversarial changes. There was often an assumption that the petitioner and guardian were acting and would continue to act in the best interest of the individual. Guardianship proceedings were often uncontested because the individual did not have the ability to object. That began to change in the 1970s, because of media attention, congressional hearings, and studies that revealed abuse. Most statutes now include standards and definitions designed to prevent such abuse.
What society thinks is in the best interest of an individual may not be what that person wants. An older person may want to stay in her own home, even though her abilities to care for herself and to manage her money are severely limited by forgetfulness and physical weakness. Her children and her doctor may want her to move to a care facility. Should the court rule in favor of protection or of self-determination? Might there be alternatives? Because of the due process implications of confining a person to an institution or using medications to restrain an individual, California, for example, has different procedures for ‘‘probate’’ conservatorships and mental health conservatorships.
Notice is an essential component of due process, and the UGPPA requires that the AIP be given written notice at least 14 days before the hearing. The notice may be delivered in a number of ways. Other interested parties are also entitled to notice.
Guardian or Conservator
Once the court determines that a guardianship or conservatorship is necessary, it must determine who should be appointed to that fiduciary position. Courts may appoint the person nominated in the guardianship or conservatorship petition or hold a separate hearing to determine the appointment.
Courts will not appoint a person as a guardian or conservator if he has a conflict of interest that impedes his ability to act in the best interest of the ward or protected person.
Fiduciary Responsibilities and Decision Making
The responsibilities of a guardian or conservator should vary with the capacity of the ward or protected person. In a limited guardianship or conservatorship in which the court grants the fiduciary only very limited authority to act, the fiduciary role may be simple and straightforward.
Section 5-314 of the Uniform Probate Code provides that the guardian or conservator should involve the ward or protected person in the decision- making process and encourage him to develop or regain the capacity to act in his own behalf.
Termination of Guardianship or Conservatorship
Once a guardianship or conservatorship has been established, it is more likely that it will continue until the elder’s death.
In most states, a termination petition may be filed by the ward or protected person or any other person interested in his welfare. In some states, a ward or protected person who seeks to terminate the guardianship or conservatorship does not have to file a formal petition. The court will consider his request to terminate even if it is informally communicated to the court.
Some statutes’ standard of proof in a termination proceeding require that a petitioner must show that the ward or protected person is no longer incapacitated or that the guardianship or conservatorship is no longer is in his best interest.
Paralegal’s Responsibilities
The paralegal must gather information and documents before preparing a petition:
Information about family, for notice to interested persons.
Information about the individual’s income and assets. Any advance directives, wills, or trusts executed by the individual.
Information about the individual’s living situation, abilities, and health.
Information about how a guardianship would benefit the individual some states require this information or a plan as part of the petition.
References:
Brashier, Ralph C. (2016) Mastering Elder Law. 2nd Edition Carolina Academic Press
Elder Law for Paralegals
https://media.wolterskluwer.com/pdfs/SampleChaptersPDF/745.pdf
ASSIGNMENT:
Explain the process of obtaining a guardianship. Be sure to address the petition process, hearing, and the related costs to expect when obtaining a guardianship.
Then, identify what characteristics you would look for in naming someone as a guardian of a senior parent and explain your reasons why.
Support your response with at least one credible APA formatted resource.
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