Conservators and Guardians

WHAT IS A CONSERVATOR?

A person who is appointed by the court to manage the property of a minor or incapacitated person.

WHO IS AN INCAPACITATED PERSON?

A person who is unable to manage property and business affairs because of:

1. Mental deficiency
2. Physical illness
3. Infirmities accompanying advanced age
4. Mental illness
5. Chronic use of drugs
6. Chronic intoxication
7. Confinement detention by foreign power
8. Disappearance

WHO CAN SERVE AS A CONSERVATOR?

A family member or any interested person with the priorities as follows:

1. Conservator appointed in another jurisdiction.
2. Person selected by incapacitated person
3. Person designated by incapacitated person’s power of attorney
4. Spouse
5. Adult child
6. Parent
7. Relative with whom said ward has lived last six months
8. Nominee of person caring for incapacitated person
9. General guardian or sheriff

WHEN CAN A CONSERVATOR BE APPOINTED?

A conservator may be appointed when an incapacitated person:

1. Is unable to manage property and business affairs, and
2. Has property that will be wasted without proper management, or
3. Funds are needed to support the incapacitated person or one entitled to support from the incapacitated person.

WHAT ARE THE POWERS AND DUTIES OF A CONSERVATOR?

Without court authorization the conservator may:

1. Retain assets
2. Receive additions
3. Acquire undivided interest
4. Deposit funds in financial institutions
5. Acquire property
6. Dispose of person property
7. Make repairs to building
8. Enter leases up to 5 years
9. Enter mineral leases
10. Grant options up to one year
11. Vote securities
12. Pay assessment
13. Invest and reinvest funds
14. Sell or exercise stocks options
15. Deposit stock and bonds
16. Consent to reorganization, merger of a business
17. Insure assets
18. Borrow to protect estate
19. Settle claims
20. Pay reasonable annual compensation to conservator
21. Pay taxes and expenses
22. Allocate expenses to income
23. Pay sum for benefit of protected person or his family
24. Employ attorneys, auditors
25. Prosecute or defend claims
26. Execute and deliver appropriate instruments
27. Hold securities (court may limit powers of the conservator)

With prior court authorization the conservator may:

1. Continue or participate in operating business
2. Demolish improvements
3. Dispose of real estates
4. Subdivide, dedicate land
5. Leases greater than 5 years
6. Grant an option more than one year
7. Take an option to acquire property

AM I REQUIRED TO HAVE AN ATTORNEY?

The legal complexity of guardianships and conservatorships normally necessitates having an attorney since the Probate Judge cannot advise you of the law or provide you with forms.

WHAT IS THE DIFFERENCE BETWEEN A GUARDIAN AND A CONSERVATOR?

The guardian looks after the person and their welfare, while a conservator looks after the estate.

WHAT ARE THE STEPS FOLLOWED IN APPOINTING A GUARDIAN OR A CONSERVATOR FOR AN ADULT?

1. Petition filed
2. Appointment of a guardian ad litem
3. Examination by physician
4. Appointment of court’s representative
5. Hearing
6. Jury at hearing if demanded
7. Bond of conservator
8. Order granting petition
9. Inventory of property for conservator
10. Letters of guardianship and/or conservatorship

IS A BOND REQUIRED?

Yes, a bond is required for conservatorships unless the bond requirement was waived in a Will or Power of Attorney.

IS AN INVENTORY REQUIRED?

Each conservator must complete an inventory of the estate immediately and file it with the court within 90 days after the appointment.

ARE ACCOUNTINGS REQUIRED?

Yes, a conservator must give an accounting to the court at least every three years. The court may order an accounting more frequently. An accounting is also required upon the resignation or removal of the conservator.

WHAT IS A GUARDIAN?

The parent of a minor or someone who has been appointed by the court to be responsible for the personal care of an individual.

WHAT IS A WARD?

Legal name for a minor or incapacitated adult for whom a guardian has been appointed.

WHO CAN BE A GUARDIAN FOR AN ADULT?

Any qualified person may be appointed. However, the law establishes the following priorities:

1. Person named in a durable power of attorney
2. Spouse or spouse’s nominee
3. Adult child
4. Parent or parent’s nominee
5. Relative with whom person has lived with the prior six months
6. Nominee of a caretaker or person

WHO CAN BE GUARDIAN OF A CHILD?

The court may appoint any person who will be in the best interest of the minor. However, if the minor is 14 years old or older, the minor’s nominee must be appointed unless the appointment is contrary to the minor’s best interest.

Also, a parental nomination has priority.

CAN A PARENT APPOINT A GUARDIAN?

Yes, in a Will, a parent may appoint a guardian for a minor child or for an unmarried incapacitated child.

CAN A SPOUSE APPOINT A GUARDIAN?

Yes, in a Will a person may appoint a guardian for his or her incapacitated spouse.

WHAT ARE THE POWERS OF A GUARDIAN?

1. Must assume responsibilities of a parent regarding support, care and education.
2. Must become personally acquainted with ward
3. Must take reasonable care of ward’s personal effects
4. Must apply available money for current needs or health, support, education and maintenance
5. Must conserve excess money
6. Must report the condition of the ward to the court
7. May receive limited funds for support of ward
8. May take custody of ward and establish a home
9. May compel payment of support
10. May consent to medical care
11. May consent to marriage or adoption
12. May delegate certain responsibilities to the ward for the decision making

(Court may limit powers of guardianship)

WHEN DOES A GUARDIANSHIP END?

1. Upon death of ward
2. Upon resignation of the guardian
3. Upon adoption of the minor
4. Upon marriage of the minor
5. Upon minor becoming an adult
6. When ward’s incapacity is terminated