Guardianship & Conservatorship is important to plan and can be reconsidered periodically to fit all stages of family life.
When is a conservatorship necessary?
A conservatorship may be necessary if an individual is unable to manage his or her property or business affairs. If the court can provide protection and management of the individual's money, property, and business affairs without a full conservatorship.
Who can petition for conservatorship?
Mentally competent persons may petition the court for a conservator for themselves. In addition, anyone interested in an individual's estate, affairs, or welfare may petition for conservatorship. Anyone who would be negatively affected by ineffective management of the individual's property or business affairs may petition for conservatorship.
Appointment for a conservatorship can be requested by another individual.
When the individual is unable to manage his/her property and affairs effectively by reasons such as: mental illness, mental incompetency, physical illness or disability, chronic use of drugs, chronic intoxication, confinement, detention by a foreign power, and disappearance. Individual has property which will be wasted or dissipated unless proper management is in place or money is needed for support, care, and welfare of the individual or those entitled to be supported by the individual; and when protection is necessary.
What happens if the disabled individual disagrees with the petition for conservatorship?
If the individual does not agree to the proposed conservatorship, then the judge must appoint an attorney to represent the individual to contest the proposed conservatorship that the individual has opposition with decision, unless the individual retains counsel of their own choosing. If counsel is appointed the court will direct payment for appointed counsel from the assets of the protected person.
Other Duties of a Conservator
*Pay the conservatee’s bills.
*Responsibly invest the conservatee’s money.
*Protect the conservatee’s assets.
*Account to the court and to the conservatee for the management of the conservatee’s assets.
*Arrange for the individual's (or conservatee’s) care and protection.
*Decide where the conservatee will live.
*Manage the conservatee’s finances.
*Locate and take control of all assets.
*Collect the conservatee’s income on their behalf.
*Make arrangements for the conservatee’s meals, health care, clothing, personal care, housekeeping, transportation, shelter, recreation, and well-being.
*Make a budget to show what the conservatee can afford.
A conservator manages the conservatorship.
A conservator general function is the collection, preservation, and investment of the individual's property and must use the property for the support, care, and benefit of the individual and his or her dependents. A conservator may not use any of the individual's assets for his or her own personal benefit.
(A conservator and guardianship are an important part of an estate plan and can be changed through time.)
Similarities and Differences with Conservator and Guardianship.
Conservator and guardian are similar terms and both positions can be appointed to one person or an entity. A guardian or a protector is appointed by a judge to manage the financial affairs and/or daily life of another due to physical ailments, a minor, an adult with mental limitations, or an elderly person. The conservator may be only responsible for the "estate" (financial affairs), but may be also of the "person," wherein he/she takes charge of overseeing the daily activities, such as health care or living arrangements of the conservatee (the protected individual).
An adult with intellectual disability may be in need of a conservator of the estate to manage his or her financial affairs, while a guardian of the person with intellectual disability is appropriate to oversee his or her personal affairs.
A guardian cares for handicapped family members or children.
A guardianship is a legal relationship to take care of minor children or incompetent adults. It is created when a person or institution named in a will or assigned by the court. A guardianship is similar to a conservatorship. A guardian of a child can be another family member, a close friend, or a local official responsible for a minor's welfare. The court will get a petition to appoint the guardian. The guardianship of a minor remains under court supervision until the child reaches majority at 18. The judge does not have to honor the request when someone is named in a will as guardian of one's child in case of the death of the parent, it is construed as a preference, but is usually honored. The term "guardian" may also refer to someone who is appointed to care for and/or handle the affairs of a person who is incompetent or incapable of administering his/her affairs.
A full guardian is responsible for the individual's care, custody, and supervision which include the following:
The individual has proper food and clothing.
The individual lives in a place that is appropriate for him or her.
The individual's medical needs are met.
The individual's property is safe. A limited guardian is responsible for only those duties stated in the court order.
Does the guardian ever make medical decisions for the incapacitated individual?
If the incapacitated individual has a valid patient advocate designation and the patient advocate is properly acting in the best interests of the patient, the patient advocate will continue to make medical decisions for the individual. Otherwise, the guardian will make the medical decisions.
What kind of reports does the guardian file with the court?
The guardian must visit the individual at least quarterly. At least once a year, the guardian must prepare a report on the condition of the incapacitated individual and file the report with the probate court. The guardian must give copies of the report to the incapacitated individual and all interested persons as defined by Michigan Court Rule.
How does a guardian provide for the disabled individual's needs?
If a conservator is not appointed, the guardian may take control of and manage the incapacitated person's funds and property for the benefit of the individual. The funds or property are used for the individual's support, care, and education. Any amount not used is saved for the individual's needs.
Can a hospital or nursing home ask a guardian to sign a Do-Not-Resuscitate Order for the Incapacitated Individual?
Generally, yes, when the incapacitated individual does not object. There is a specific procedure limiting when and how a guardian may do this.
Guardianship for a for an adult who loses the ability to take care of him or herself properly which is considered incapacitated. When the incapacitated person lacks the understanding or ability to make or communicate informed decisions, the individual may need the help of a guardian (or conservator).
NOTE: If the incapacitated person has a Designation of Patient Advocate or a Durable Power of Attorney, then a guardian and/or conservator may not be necessary.
If an individual has a disabling condition that began before the age of 22, and the condition is likely to continue indefinitely, then a guardian is appointed under a different set of laws.