Frequently Asked Questions
- Is a guardianship or conservatorship necessary?
- What is a guardianship?
- What is a conservatorship?
- How is a guardianship and conservatorship established?
- Once appointed, can a guardian and conservator do anything they want to assist the incapacitated?
- Is a conservator personally liable for the incapacitated?
- Is the guardian and conservator compensated for his or her efforts?
- What reporting responsibilities do I have as a guardian?
- What reporting responsibilities do I have as a conservatorship?
Is a guardianship or conservatorship necessary?
The appointment of a guardian or conservator is a remedy of last resort, one should look first at other alternatives. Oast & Hook can help you determine if there are any other alternatives and whether a guardianship or conservatorship are truly necessary.
What is a guardianship?
A guardianship is a protective arrangement established by a court in which an individual is declared mentally incapacitated and a guardian is appointed to manage their personal affairs, including responsibility for making decisions regarding the person's support, care, health, safety, rehabilitation, education, therapeutic treatment and residence.
What is a conservatorship?
A conservatorship is a protective arrangement established by a court in which an individual is declared mentally incapacitated and a conservator is appointed to manage the estate and financial affairs of an incapacitated person.
How is a guardianship and conservatorship established?
The individual seeking to be guardian or conservator must acquire certification from a physician which state that the proposed incapacitated is unfit and unable to govern him or herself and manage personal, medical and financial affairs. A Petition is filed with the court which lists all related parties and describes the income and assets of the proposed incapacitated. Prior to the court hearing, the proposed incapacitated and immediate family must be served notice, and an attorney will be appointed to represent the proposed incapacitated's interests. A hearing is then held to determine if a guardianship or conservatorship are necessary. If there is no contest, a guardianship and conservatorship will be established on the hearing date.
Once appointed, can a guardian and conservator do anything they want to assist the incapacitated?
In general, a guardian can handle the daily affairs of the incapacitated, including making routine medical decisions and handling payment of bills. However, courts frequently require that the permission of the probate judge be sought in order to sell a incapacitated's residence or to make gifts from the incapacitated's assets unless specifically granted the authority to do so.
Is a conservator personally liable for the incapacitated?
No. The conservator is not liable for the acts or debts of the incapacitated solely by becoming a conservator. However, the conservator can become responsible and liable if he or she grossly mismanages or steals the incapacitated's assets.
Is the guardian and conservator compensated for his or her efforts?
A guardian and conservator does receive compensation for the services that he or she renders. The compensation is typically based on the amount of assets owned by the incapacitated and is calculated on an annual basis. In addition, the guardian is entitled to reimbursement for reasonable expenses incurred in the discharge of his or her duties.
What reporting responsibilities do I have as a guardian?
A guardian is required to file a report with the Department of Social Services within six months of qualification and annually thereafter. In this report you will provide information regarding the current mental, physical and social condition of the incapacitated, the living arrangements of the incapacitated, any recommendations as to the need for continued guardianship. Oast & Hook is also available to assist with the administration of the guardianship following qualification.
What reporting responsibilities do I have as a conservatorship?
A conservator is required to report to the Commissioner of Accounts and must file an inventory within four months of qualification. Within six months of qualification, the conservator must file an accounting covering the first four months of receipts and disbursements for the incapacitated must be filed. An annual accounting must be filed no later than four months after the anniversary date of the first accounting during the duration of the conservatorship. A conservatorship is a fiduciary relationship and it is very important that the incapacitated funds be managed properly to avoid potential liability. Oast & Hook is available to assist with the administration of the guardianship follow qualification.
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