Guardianship and conservatorship proceedings are within the exclusive jurisdiction of the county probate court pursuant to the Estates and Protected Individuals Code. These fiduciary legal devices are designed to place a suitable “substitute decision maker” with individuals in need of protection.
Simply put, a guardianship involves making personal decisions regarding the mental and physical well-being of the protected individual. Issues such as where the person will live and what medication to take are resolved by the guardian, who must keep his ward’s interests paramount in the decision-making process.
A conservatorship, on the other hand, solely involves financial matters; a conservator has no health-care-related powers at all.
For individuals that have a developmental disability, a mental incapacity, or are minors, a guardianship and conservatorship may be court ordered. The guardianship or conservatorship order protects individuals no longer able to make important decisions on their own.
There are a variety of reasons someone may be under a guardianship or conservatorship or both: mental illness, substance abuse and addiction, stroke, traumatic brain injury, Alzheimers disease, dementia, and many other conditions, both sudden and irreversible as well as slowly progressive. Sometimes, a protected individual reacquires their ability to live independently and the guardianship or conservatorship are no longer necessary.
Because the implementation of a conservator or guardian involves taking control over the life of an individual, the status is disfavored in our free society, characterized as it is with individual liberties. Therefore, EPIC contains many safeguards for this substantial interference with the power and freedom of an individual to make their own decisions.
Alternatives to full guardianship include: utilizing a durable general power of attorney or other agent designation, patient advocate designation, forming a trust, a limited guardianship, or informal arrangements which sometimes work and other times, not so much. These options can be discussed with a probate lawyer.
To establish a guardianship, the petitioner must demonstrate through clear and convincing evidence that a person is incapacitated and in need of continuing care and supervision. EPIC defines an incapacitated individual as:
an individual who is impaired by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, or other cause, not including minority, to the extent of lacking sufficient understanding or capacity to make or communicate informed decisions.
Once a person has become “qualified” to serve as a guardian, i.e. when the fiduciary executes an “acceptance”, there are several duties acquired that will demand the immediate attention to the fiduciary. Our law firm has vast experience in handling all manner of legal issues arising from the operation of guardianships, including serving as a professional fiduciary in hundreds of cases, as well as representing petitioners, previously-appointed fiduciaries, and other interested parties.
A conservatorship is established in EPIC when a petitioner establishes, through clear and convincing evidence, one of three conditions:
- A minor owns money or property, has business affairs, or needs protection to gain money needed for support and education.
- A person is unable to manage his or her property or affairs effectively for specified reasons and needs protection to prevent waste or provide protection for himself or herself and his or her dependents.
- A mentally competent person, due to age or infirmity, is unable to manage property effectively and requests the appointment.
Conservators must file annual accounts with the probate court so that the manner in which they have marshaled and conserved the funds of the protected individual can be examined under oath.
If you have a family member about whom there has been some discussion of incapacity, or some other disability; or if you would like to be proactive with an estate plan to include such events as a sudden incapacity, contact our office to schedule a free consultation.