Whether due to aging, disability, or some other unique circumstance, if a loved one starts to experience difficulty in taking care of themselves, the conversation family members often have surrounds whether one has the legal authority to act for the person who needs additional assistance, whether in their daily living, finances or otherwise. Being proactive with your estate planning in anticipating these issues is key for a clearer understanding of one’s legal authority. However, if there has been no advanced incapacity planning, or even if there has, circumstances warrant the person named in the incapacity documents needing more legal authority to help the individual than the document allows, typically the only solution is a court process to establish guardianship or conservatorship. There is a lot to know about the rights a person under a guardianship or conservatorship has, and the roles and responsibilities of guardians and conservators.
People subject to guardianship or conservatorship are granted a list of rights under the law. These rights (e.g., right to participate in healthcare decisions, to personal privacy, to have an attorney), are guaranteed by the court. While the court is the conclusive authority to enforce and protect the rights of the person subject to guardianship/conservatorship, all interested parties in the guardianship/conservatorship should know and understand the rights of the individual, Especially the persons serving in the role as guardian and/or conservator.
Guardians have a legal duty to care for the person that is deemed incapacitated. Generally, they must provide for the person’s care, comfort, maintenance, health, and safety. This includes duties such as ensuring a person has adequate food and shelter, and taking reasonable care of the individual’s personal effects. Guardians also have a duty to provide the person with appropriate health care, including consent or decline of medical care and treatment, facilitating habilitation or rehabilitation, counseling, and treatment. Guardians also have the duty to assist the individual with any social and recreational requirements, including training and education when appropriate. First and foremost, the guardian must act in the best interests of the person subject to guardianship/conservatorship. When guardians need or desire help in determining the best interest of the person, they can always seek court approval and guidance for the chosen course of action.
Conservators have the legal duty to take care of the person’s “estate.” This generally includes paying for the person’s support and financial maintenance, and keeping accurate and detailed records and accountings. A conservator is responsible for practical components of the individual’s financial affairs, such as paying the bills, writing checks, and maintaining financial accounts. However, in many cases, conservators are tasked with selling an individual’s real estate, if it is determined by the court that it is in the individual’s best interest. Typically, the court must oversee the conservator’s actions, and require an annual accounting of the assets, income, and expenses going in and out of the protected person’s estate. Similar to guardians, the conservator serves, first and foremost, the protected person’s best interest, and any transactions need to be made for the benefit of the protected person.
The dual role of respecting an individual’s rights and fulfilling responsibilities can make for an arduous job. In many cases, the appointed guardian or conservator is a spouse, child, sibling, or other close relative, and many times if the individual needs both a guardian and conservator, it ends up being the same person to take on both roles. Guardians and conservators commonly struggle with emotionally caring for the person and having legal responsibilities to help that person, which can no doubt add more complexity to an already difficult situation for families.
Take, for example, a daughter who becomes the court-appointed guardian and conservator of her mother. The daughter is a paralegal for an estate planning and probate firm, and clearly understands her responsibilities and is completely capable of fulfilling her roles and responsibilities, after all, she assists the attorneys in her office daily with these types of matters. Daughter decides to approach her mother about re-organizing the house because she thinks it is unsafe as is and the accumulation of personal items are becoming trip and fall hazards, and suggests her mother “simplify” things by way of disposing of “clutter.” Her mother, personally offended by this suggestion, adamantly objects, claiming that she wants to keep everything the way it is, as it has been for years. Mom is unhappy because she feels her desire to keep her how she wants is being questioned. The daughter is worried because she knows she has a legal duty to protect her mother’s safety and well-being, and to ensure that disposing of whatever property is sold is favorable to her mother’s estate.
Under the law, the mother has a right to be notified of the disposal of any of her property, and the daughter must provide her mother a written notice listing the prospective items she intends to dispose of. The mother, if she disagrees with her daughter, may object to the notice and demand the court the review of the daughter’s plans to remove her property. This results in personal service of documents on one another, and a court hearing in front of a judge or referee. Thus, what began as a small squabble between mother and daughter became a contested legal proceeding between a guardian and a protected person.
The possibility for these types of conflicts to arise is unfortunately all-too real and undoubtedly difficult on all sides. Seeking representation from probate and elder law attorneys can help one not only navigate, but anticipate these difficult scenarios, which could resolve issues between families before they even get to the eyes of the court.
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