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Guardianship and Conservatorship

What is a Guardian?

A guardian (guardian of the person) is one appointed by a court to have the care and custody of the person of a minor or of an incapacitated person.

What is a Conservator?

A conservator (guardian of the estate) is one appointed by a court to have the care and custody of the estate of a minor or of a disabled person.

What Does It Mean to Be Incapacitated or Disabled?

An incapacitated person is one who is unable by reason of any physical or mental condition to receive and evaluate information or to communicate decisions to such an extent that he or she lacks capacity to meet essential requirements for food, clothing, shelter, safety or other care such that serious physical injury, illness, or disease is likely to occur.

A disabled person is one who is unable by reason of any physical or mental condition to receive and evaluate information or to communicate decisions to such an extent that the person lacks ability to manage his financial resources.

What are the duties of a guardian and a conservator?

A guardian of a minor or an incapacitated person is charged with responsibility for such minor or incapacitated person’s care, treatment, shelter, education, support and maintenance. The guardian must act in the best interest of the minor or incapacitate person and file an annual report with court on the minor or incapacitated person’s well-being.

A conservator (guardian of estate) is responsible for managing a minor or a disabled person’s financial affairs. The conservator must account for all funds received and expended on behalf of the minor or disabled person and file an annual accounting regarding financial transactions of such minor or disabled person’s estate.

How to establish a guardianship/conservatorship?

In order to be appointed as a guardian and/or conservator, a person must:

  • File a petition with the probate court in the county where the incapacitated or disabled person resides;
  • Pay filing fees and costs;
  • Have the incapacitated or disabled person evaluated by a physician and have written Interrogatories filed with the court;
  • Have the incapacitated or disabled person served with the petition by the sheriff;
  • Present evidence at a contested hearing in court;
  • Pay attorneys’ fees to represent himself or herself AND attorneys’ fees for a separate attorney to represent incapacitated or disabled person; and
  • Post a bond in the amount of any assets owned by the incapacitated or disabled person if seeking conservatorship.

What is the effect of adjudication?

If the court finds a person with total disability or incapacity, that person becomes a ward of the court or a protectee of the court  and the court acquires the authority to supervise and direct such person’s future care, treatment, placement, support and maintenance. If the court finds a person with partial disability or incapacity, the person loses only those rights specified in the court order.

How to establish a guardianship/conservatorship?

In order to be appointed as a guardian and/or conservator, a person must:

  • File a petition with the probate court in the county where the incapacitated or disabled person resides;
  • Pay filing fees and costs;
  • Have the incapacitated or disabled person evaluated by a physician and have written Interrogatories filed with the court;
  • Have the incapacitated or disabled person served with the petition by the sheriff;
  • Present evidence at a contested hearing in court;
  • Pay attorneys’ fees to represent himself or herself AND attorneys’ fees for a separate attorney to represent incapacitated or disabled person; and
  • Post a bond in the amount of any assets owned by the incapacitated or disabled person if seeking conservatorship.

What is the effect of adjudication?

If the court finds a person with total disability or incapacity, that person becomes a ward of the court or a protectee of the court  and the court acquires the authority to supervise and direct such person’s future care, treatment, placement, support and maintenance. If the court finds a person with partial disability or incapacity, the person loses only those rights specified in the court order.