Guardianships & Conservatorship

Guardianships & Conservatorship

For some family members and loved ones, legal protection may be necessary even after they have entered adulthood. 

These individuals may have been injured in an accident, continue to suffer from an incapacitating physical illness or psychological disorder, or have some other condition that prevents them from caring for themselves. In these cases, a guardianship or a conservatorship may be established.

Guardians, Conservators, and Protected Persons

Guardianship (and conservatorship) 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.  Guardians may be appointed for protection of the person only.  A conservator must be appointed to protect property and business affairs of a person in need of protection.

A guardian is typically a family member, friend, or fiduciary appointed by the court.  A protected person can be a minor without a parental guardian or an adult who can no longer make safe and sound decisions about his or her own person or property.  Additionally, a person may be placed under guardianship who is prone to fraud or undue external influence. 

While guardianship does attempt to maintain the protected person’s independence, it should only be considered in appropriate cases, as it may significantly impinge upon rights of the individual. 

Appointment of a guardian can materially 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
  • Marriage
  • Voting

Right to Due Process

To safeguard the protected person’s right to due process, he or she may be entitled to notice of, and ability to attend all legal proceedings related to guardianship.  In addition, the protected person may obtain representation by an attorney, present evidence, and confront and cross-examine all witnesses.

Guardianship of the Person

A guardian may be appointed for an incapacitated person “who for reasons other than advanced age or minority, has a clinically diagnosed condition that results in an inability to receive and evaluate information or make or communicate decisions to such an extent that the individual lacks the ability to meet essential requirements for physical
health, safety, or selfcare, even with appropriate technological assistance.”

Guardianship of the person often relegates the following responsibilities to the appointed guardian:

  • Determining and maintaining residence
  • Providing informed consent to and supervising medical 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.

Temporary Guardianship

While a petition for the appointment of a guardian is pending, if an incapacitated person has no guardian, and the Court finds that an emergency exists that will likely result in immediate and substantial harm to the health, safety or welfare of the person alleged to be incapacitated, and no other person appears to have authority to act in the circumstances, on appropriate motion, the Court may appoint a temporary guardian who may exercise only those specific powers granted in the order. The appointment may be for a period of up to 90 days except that upon a finding of extraordinary circumstances set forth in its order, the Court may order an appointment for a longer period to a date certain. The Court may for good cause shown extend the appointment for additional 90 day periods.

Full/Plenery Guardianship

A full/plenary guardianship generally removes from an incapacitated person all personal decisionmaking responsibility and authority. Under the current law, clinicians and the Court must now consider whether an incapacitated person’s legal rights can be preserved in specific areas and whether the guardianship can be limited or tailored accordingly.

Conservatorship of the Estate or Property

A conservator may be appointed for a person to be protected if “the person is unable to manage property and business affairs effectively because of a clinically diagnosed impairment in the ability to receive and evaluate information or make or communicate decisions, even with the use of appropriate technological assistance, or because the individual is detained or otherwise unable to return to the United States; and the person has property that will be wasted or dissipated unless management is provided or money is needed for the support, care, and welfare of the person or those entitled to the person’s support and that protection is necessary or desirable to obtain or provide money.”

Conservatorship of the estate or property transfers the following responsibilities to the conservator:

  • 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

Many guardianships and conservatorship are temporary arrangements, meant to protect an incapacitated individual or an individual in need of protection until he or she regains capacity.

Temporary Conservatorships

While a petition for the appointment of a conservator is pending, if a person to be protected has no conservator, and the Court finds that an immediate and/or urgent situation exists that will likely result in substantial harm to the property, income or entitlements of the person to be protected or those entitled to the person’s support, and no other person appears to have authority to act in the circumstances, on appropriate motion, the Court may appoint a temporary conservator who may exercise only those specific powers granted in the order. The appointment may be for a period of up to 90 days except that upon a finding of extraordinary circumstances set forth in its order, the Court may order an appointment for a longer period to a date certain. The Court may for good cause shown extend the appointment for additional 90 day periods.

Full/Plenary Conservatorship

A full/plenary conservatorship generally removes from a person to be protected all control over his or her assets. Under current law, the Court must now consider if a conservatorship can be limited which means that the Court can preserve legal rights in specific areas. See discussion of Limited Conservatorship and Protective Orders above.

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. 


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