Guardianship and Conservatorship
Guardians of Protected Persons, Minors or Disabled
Guardianship is a legal arrangement that places an individual, also known as a ward or protected person, under the supervision of a Court appointed guardian or custodian of the individual. There are two main types of guardianship: guardianship of the person and guardianship of the estate or property.
A guardian may be a family member, or friend, or any other person who is appointed as a fiduciary by the court. A protected person can be a minor or an adult who can no longer make safe and sound decisions about his or her own person. A person may be placed under guardianship because he/she is someone who is prone to be subjected to fraud or undue external influence.
While guardianship does preserve some of the ward's independence, but it may, in the appropriate cases, impinge upon rights of the individual.
Appointment of a guardian can limit the rights and privileges of the protected individual in areas such as:
- Choosing residence
- Providing informed consent to medical treatment
- Making end-of-life decisions
- Making property transactions
- Obtaining a driver's license
- Owning, possessing, or carrying a firearm or other weapon
- Contracting or filing law suits
Right to Due Process
The ward's right to due process is protected. He or she may be entitled to notice of, ability to attend and have a Court appointed attorney represent him/her at all legal proceedings. The ward may personally or with an attorney present evidence, and confront and cross-examine all witnesses.
Guardianship of the Person
Guardians of the person often relegates the following responsibilities to the appointed guardian:
- Determining and maintaining residence
- Providing informed consent to and supervising medial treatment
- Consenting to and supervising non-medical services such as education, psychiatric or behavioral counseling
- Making end-of-life decisions
- Paying debts and other expenses
- Maintaining the protected person's autonomy as much as possible
The guardian may be required to report to the court about his or her activities on an annual basis.
Conservator or Guardianship of the Wards Property
A Conservatorship is a Court appointed fiduciary who must report annually to the court as to the income expenses, investments of the Wards property. It transfers the following responsibilities to the Conservator, subject to Court supervision:
- Organizing, gathering and protecting assets
- Arranging appraisals of property
- Safeguarding property and assets from loss, whenever possible
- Managing income from assets
- Making appropriate payments
- Obtaining court approval prior to any sale of major assets
- Reporting to the court the estate's status on a regular basis
Guardianship of Minors
Guardianships may also be used to protect the legal rights of a minor. In the event that a parent is no longer able to act on behalf of his or her child, a guardian, usually a relative, is appointed. Unlike an adoption, under a guardianship, parents may remain responsible for supporting the child financially and they do not necessarily forfeit their parental rights.
A minor may be considered for legal guardianship if his or her parent cannot provide shelter, does not have a steady income, suffers from an illness, or is incarcerated. In most instances, parental approval is sought prior to any legal proceedings.