Elder law deals with issues that arise when our medical condition, housing needs, and finances overlap, due to our advancing age. Many people are surprised to learn that they can qualify for government benefits to help pay for long term care. Common legal advice includes powers of attorney, living wills, guardianships and conservatorships, asset preservation as it relates to long term care, qualifying for Medicaid benefits that can assist in paying for long-term care, and more general estate planning conducted in a way that will not interfere with obtaining those government benefits. Visit our Medicaid Benefits Center for more information if you are already in or are contemplating a move to assisted living or a nursing home.
A person who has diminished decision-making capacity and is under a guardian and/or conservatorship is now called a “protected person.” The court appoints a guardian to be responsible to make personal living, educational, social, and health care decisions for the protected person. On the other hand, a conservator is the person who is in charge of the protected person’s income and assets. A protected person can have just a guardian or a conservator or both. One person can serve as both the guardian and conservator, or there can be different people in those roles. Typically, the guardian and/or conservator must be a resident of the state where the court has jurisdiction.
There are typically three circumstances that give rise to the need for a guardianship and/or conservatorship.
1. A minor child needs a guardian and/or a conservator, such as in the case where parents have died in an accident or the juvenile court has terminated parental rights.
2. A person with a developmental disability is turning 18 years of age and is not competent enough to make all of his or her own personal and/or financial decisions.
3. An adult has a mental illness or has developed cognitive impairments that interfere with the person's ability to manage his or her personal life and or financial resources.
Temporary Emergency Guardianship/Conservatorship
A formal court proceeding is needed to establish a guardianship and/or conservatorship.
In an emergency, a temporary emergency guardianship may be established as early as the same day, depending on which day of the week it is, how late in the day, and what county you are in. A temporary emergency guardianship lasts for only 30 days, and is the precursor to a permanent guardianship/conservatorship. However, permanent does not have to mean forever. A guardian and conservator must file an annual report with the court that recommends whether or not the guardianship/conservatorship be continued for the next year.
A guardianship/conservatorship can be voluntary or involuntary. It can only be voluntary when the protected person has enough capacity to know that he or she needs a guardianship/conservatorship and who the guardian/conservator should be, but whose decision-making capacity is so impaired that the person poses a danger to him/herself if left without assistance.
Steps to Establishing an Involuntary Guardianship or Conservatorship
Someone, called the Petitioner, contacts an attorney to request assistance. The attorney prepares a petition informing the court that a person needs assistance, where the person currently lives, why the person needs assistance, and whom would be the best person to provide the assistance.
The protected person must be represented by an attorney. Often, the petitioning attorney can provide a list of attorneys who routinely represent the respondent in these cases. (Respondent is the label used to refer to a person over whom a guardianship/conservatorship is requested.) In some cases, a third party called a court advisor is also needed. The petition is filed and a court hearing is set to determine whether or not and to what extend a guardianship/conservatorship is needed. There is a long list of people who are entitled to be informed that a court proceeding is being held to establish a guardianship and/or a conservatorship and are invited to participate, including the spouse, adult children, siblings, persons who have held the respondent power of attorney, and persons with whom the respondent has lived with for at least six months.
The respondent has a right to attend the Hearing. However, this right may be waived by the respondent's attorney. Testimony and medical evidence are introduced at the Hearing, and anyone objecting has an opportunity to tell the court why. If a court visitor has been appointed, the court will review the court visitor's report. (A court visitor is a neutral third party chosen by the court to interview all the parties prior to the Hearing and make his/her own recommendation to the court about whether or not a guardianship/conservatorship is needed, if so to what extent, and whether the person nominated as guardian/conservator is an appropriate person to serve.)
After the Hearing
A guardian must file an initial report, and thereafter, an annual report letting the court know what services the guardian is providing for the protected person. A conservator must file an initial inventory of all assets and income, an initial financial plan and an an annual accounting, for each year.
Who Can Serve?
Guardian. An adult meeting a background check can serve as a guardian. (In some cases, the state or a non-profit organization may serve as the guardian for a minor having no responsible adult.) Except in rare circumstances, the guardian must live in the state where the guardianship is located, or if out of state, it is likely that a co-guardian who does live in the state will also be appointed. If the protected person had a General Durable or Health Care Power of Attorney that specified his or her preference for guardian, if one is needed, it will be given deference. If not, in some states preference is given according to blood relationship, while in other states, that is not a material factor. It is best if everyone is in agreement of who the best person or entity is to serve as guardian.
Conservator. An adult or financial institution with a trust department can serve as a conservator. Unless the conservator is a financial institution, the conservator will very likely have to post a bond. A bond is like an insurance policy that protects the protected person in the case that the conservator steals or mismanages the conservatorship assets. The bond company will review the applicant's financial status and credit history prior to approving a bond.
1. Who pays for the attorney fees? Typically, the person over whom the guardianship/conservatorship is obtained will ultimately pay for the attorney fees. Many attorneys do not charge a retainer and all attorneys must wait until the court approves fees before accepting payment. (Some attorneys will ask for payment to be placed in their client trust account, while awaiting court approval.)
2. How much does it cost? Most attorneys charge an hourly rate, so it is difficult to nail down a price. Paralegals handle much of the routine work, and paralegal time is billed at a lower rate than attorney time. However, whenever we are talking about taking someone's rights away, there is due process and court time involved. At minimum, you can expect 5-6 hours of attorney time and 10-15 hours of paralegal time.
3. Can I get paid for being a guardian/conservator? Yes. The law allows you to be paid, even if you are serving as a guardian or conservator for a family member such as your child or your parent. You must keep track of your time and submit your bill to the court, just as a third party would do. (In some guardianship only cases, there are no assets or income available to pay the guardian. If no funds are available, then payment is not an option.)
4. What is a limited guardianship? Guardianships are no longer all or nothing. The court must determine to what extent the protected person is able to manage his or her own affairs and only infringe on rights to the extent necessary. For example, the court may order a limited guardianship for the purposes of making mental health decisions only, for a person with a mental health condition that is routinely managed with medications, such as schizophrenia or bi-polar disorder. If a person with a condition such as these goes off of his or her medication, the person is not able to make rational decision and will need immediate help to restore the mental health balance. Thus, a limited guardianship is a good tool that allows autonomy for the protected person, when the protected person is functional.
Letsch Law Firm is experienced in leading families though the process of obtaining, maintaining, and termination of guardianships and conservatorships. There are many more question than can be answered on this website. Guardian and conservatorship training classes are frequently offered. Check the events page to determine whether or not a class meets your schedule.
To learn about Wills, Trusts, Powers of Attorney, and Living Wills, visit our Estate Planning page.