With life expectancies expanding, many of us face decisions and situations that were relatively rare only a decade or two ago. One of these is the question of adult guardianship. This post describes what adult guardianship is, what a guardian does, and what happens after you petition the court.
What Is Adult Guardianship?
The legal definition of adult guardianship is “…a person or entity appointed by a court to care for a person who cannot meet his needs…”
It’s important to note that most states actually define two types of legal guardians. Although “guardianship” is the more common term, “conservatorship” is another type of legal guardian. While the terms are often used interchangeably, they are actually quite different legally.
- A guardian makes personal decisions for the person, who is known as the ward.
- A conservator makes financial decisions for the individual, who is known as the protected person.
Family court determines whether to appoint a guardian or conservator. The court also decides whether one person or entity will fulfill both roles.
When Will the Court Appoint a Guardian or Conservator?
Each state has its own guidelines surrounding whether to appoint an adult guardian or conservator. However, most states have stringent criteria for proving that adult guardianship is necessary. The goal is allowing people to retain their personal freedom as much as possible.
Usually, the court only decides to appoint an adult guardian or conservator if it determines the individual can no longer make reasonable decisions due to disability or incapacity. The most common reasons for this are:
- Physical illness or disability
- Mental disorder, illness, or deficiency
- Chronic drug use or intoxication
Even if the court appoints a guardian or conservator, there are limits to their duties. The rights of the protected person or ward are tantamount. Guardians help make decisions or give consent; they are not caretakers.
Whom Does the Court Appoint as Guardian or Conservator?
Most states allow anyone to petition the court to determine whether adult guardianship is required. However, the petitioner will not necessarily be named as the guardian or conservator.
If the proposed ward has an advance directive, such as a power of attorney, the court usually appoints the entity named in said document(s). However, the court may appoint a different guardian or conservator if it deems it necessary. Common reasons include:
- The document was not properly written
- It is proved that the person or entity named in the document is not acting in the best interests of the individual
- It is proved the proposed ward was incapable of making reasonable decisions when the document was created
Who Might be Named Guardian or Conservator?
In cases where the proposed ward makes his or her wishes known, that person is usually named guardian or conservator. When there is no medical or financial power of attorney, most states consider potential guardians in the following order:
- Adult children
- Relative or close friend who has lived with the proposed ward for six months or more
The person selected as the guardian must meet certain criteria. These vary by state, but in general, the person must be aged 18 or older and undergo a background check. And, of course, the guardian or conservator must have the ability to make reasonable decisions (or else how can they make decisions for another?).
What Are the Responsibilities of a Guardian?
The court may set certain limits on a guardian’s responsibilities. However, in general, they are similar to the responsibilities of a parent.
Adult guardians make personal decisions for the ward, including medical care, where he or she lives, and socialization. The guardian is expected to always act in the ward’s best interests and to consider their preferences in every decision.
To help ensure the guardian acts in the ward’s best interests, they must file a written report with the court every year. Included are details about the ward’s living conditions and a statement from their physician.
What Are the Responsibilities of a Conservator?
The conservator’s sole concern is the protected person’s financial wellbeing. Responsibilities include:
- Distributing funds to cover the protected person’s support
- Keeping detailed financial records
- Making financial investments
- Paying bills
- Paying claims against the protected person’s estate
As with a guardian, conservators must file a yearly written report that details every financial transaction made on the protected person’s behalf. Conservators have an additional reporting requirement, though. Within the first 90 days of their appointment, the conservator must complete an inventory of the protected person’s estate and file it with the court.
Please note that the conservator may not pay their own bills with or make gifts of the protected person’s assets.
What Happens After You Petition for Guardianship or Conservatorship?
Once the court receives a petition for guardianship, it assigns an investigator and physician to examine the prospective ward. If the ward does not have an attorney, the court appoints a lawyer on their behalf.
The court also notifies the prospective ward that the petition has been filed, as well as the scheduled hearing date. Additional notifications are sent to the spouse, adult children, and parents of the prospective ward.
What Happens if No One Is Willing to Act as Guardian or Conservator?
The court will not name someone as guardian or conservator unless that person is willing to serve. If no one steps forward, the court appoints a guardian. Who is appointed depends on numerous factors, starting with state statute. If the estate is large enough, the judge may appoint a private fiduciary. Individuals with a more modest estate typically become wards of the state, known as a public fiduciary.
Medicare Covers Advance Care Planning
Medicare Part B covers advance care planning as part of your Yearly Wellness Visit. Your physician can help you complete the forms to detail your wishes in the event you are no longer able to advocate for yourself.
If you need help understanding your Medicare options, call us toll-free at 855-350-8101 to speak to a licensed agent.