Summary

Oast & Hook can assist you in becoming appointed Guardian of the person and Conservator of the property of your loved one thereby insuring that your loved one will be secure and cared for and that you will be in control of decisions pertaining to his or her person and property.

A guardianship and a conservatorship is a protective arrangement established by the court for an incapacitated person. Guardianships and conservatorships are usually established for older adults who have lost mental capacity due to dementia, major strokes, and severe mental illness; among other conditions. These incapacitated adults often need help with their medical treatment, residential placement, and the management of their financial affairs.

An incapacitated person is an adult who has been found by the court to be incapable of receiving and evaluating information effectively or responding to people, events, or environments to such an extent that the individual lacks the capacity to: (i) meet the essential requirements for his or her health, care, safety, or therapeutic needs without the assistance or protection of a guardian, or (ii) manage property or financial affairs or provide for his or her support or for the provide for his or her legal dependants without the assistance or protection of a conservator. (A finding by the court that an individual displays poor judgment, alone, is not considered sufficient evidence that the individual is an incapacitated person.) A guardian is a person appointed by the court who is responsible for the personal affairs of an incapacitated person, including responsibilities for making decisions regarding the person's support, care, health, safety, rehabilitation, education, therapeutic treatment and residence. A conservator is a person appointed by the court who is responsible for managing the estate and financial affairs of an incapacitated person.

Because the appointment of a guardian or conservator is a remedy of last resort, one should look first at other alternatives. One should determine if the incapacitated adult is truly "incapacitated," as described above. One should see if the incapacitated person has already executed a durable power of attorney or an advance medical directive? If not, can and will this person execute a durable power of attorney or advance medical directive? Will it suffice to have someone appointed the representative payee of the incapacitated person?

If there is no satisfactory alternative to the appointment of a guardian or a conservator, then one must petition the circuit court in the city or county where the incapacitated person resides or is located or where this person resided immediately prior to becoming a patient in a hospital or a resident in a nursing home facility or any other similar institution, to have a guardian or conservator appointed for the incapacitated person. The court must appoint a guardian ad litem for the incapacitated person. This guardian ad litem is an attorney whose duty is to protect the interests of the incapacitated person. Notice of the proceeding must be given to several family members. The incapacitated person is entitled to a jury trial and may have independent counsel appointed for him or her, call witnesses and cross examine witnesses. The procedure also requires that a health care professional file with the court a report evaluating the condition of the incapacitated person. Before it appoints a guardian or conservator for the incapacitated person, the court must make several specific findings of fact and conclusions of law. If the court appoints a guardian or conservator of an incapacitated person, then that person must qualify in the clerk's office and post the bonds required by the court. The guardian or conservator must report his or her actions in serving as the guardian or conservator for the incapacitated person.

The appointment of a guardian or conservator for an incapacitated person is a remedy of last resort. Because of this, every adult should have a durable power of attorney and advance medical directive.