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Understanding Guardianship or Conservatorship

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Guardianship is a legal process where a court appoints a guardian and provides that individual with the legal power to make decisions for and handle the financial affairs of a person who is incapacitated or is a minor. The person appointed by the court is called a Guardian; the incapacitated person or the minor is called the Ward.

Setting up a guardianship starts with determining whether a person is legally incapable of handling his or her own affairs. Although the specific procedure for determining whether a person is incapable of making his or her own decisions differs from state to state, certain basic steps are common in all states:

  • Family, friends, or financial advisors file a petition questioning the mental state of a person who is alleged to be incapacitated
  • The court instructs third parties to analyze the mental capacity of the individual concerned
  • An attorney is appointed to represent the individual concerned
  • Experts evaluate the individual concerned to check mental state and judge his/her ability to make independent financial decisions
  • Reports are filed regarding about the individual’s mental and physical condition
  • The court reviews the reports and submits copies to the individual’s attorney
  • The court hears arguments for and against the appointment of a guardian, if necessary
  • The judge makes the decision regarding the concerned person’s state of mind and level of incapacity
  • The judge appoints an appropriate guardian or conservator, if necessary, who is capable of handling specified responsibilities on behalf of the individual concerned

The appointed guardian is required to make periodic reports to the court and in many cases is also required to purchase a surety bond, a type of insurance policy protecting the estate of the ward. The costs and expenses incurred by the guardian or the conservator to carry out his or her duties are paid by the incapacitated person’s estate.

Roger Levine, Estate Planning Attorney
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