Q: What happens if the court
appoints a guardian and conservator for
someone? Does that mean that the person
no longer has any right to make their
own decisions?
A guardian
is a person who is appointed by the Probate Court to make
personal decisions for another individual after the Court
has made a finding that the individual lacks the capacity or
understanding to make informed decisions. A conservator is
a person appointed by the Probate Court to manage the
financial affairs or property of another individual after
the Court has made a finding that the individual is unable
to manage his/her finances or property effectively. In both
cases the Probate Court must also make a finding that the
guardianship or conservatorship is necessary and that there
is not a less restrictive means of protecting the
individual’s interests. The same person may be appointed as
guardian and conservator. In many cases a family member or
close friend is appointed. However if there is no suitable
or willing family member or friend the Court will appoint a
third party, such a non-profit agency or an attorney.
The
appointment of a guardian or conservator results in a
drastic restriction of the person’s right to make their own
decisions. A guardian has the right to choose heath care
providers and consent to treatment, decide where the person
will live, and arrange for social services. A conservator
takes over management of the person’s finances and
property. A guardian cannot limit the person’s access to
the courts or to seeking help from attorneys or law
enforcement. A guardian should not limit the person’s
access to visitors unless the visitor poses a risk and should not limit
access to religious services or to private communications.
There are
detailed procedures that must be followed before a guardian
or conservator can be appointed. These procedures are meant
to assure that the person who is the subject of the
proceeding has a fair opportunity to contest the petition if
he/she wishes to do so and to avoid unnecessary
guardianships or conservatorships. Anyone who is concerned
with the person’s welfare may file a petition with the
Probate Court requesting appointment of a guardian or
conservator. In many cases, the petitioner is a family
member or close friend, but in some instances a social
worker or Adult Protective Services worker will file the
petition. The petition must include specific facts about
the person’s condition and examples of recent conduct that
show the need for a guardian or conservator. The Court also
requires that a doctor’s statement be attached explaining
why the person needs a conservator or guardian.
When the
petition is filed the Court will set a hearing date and give
the petitioner instructions on serving copies on the
interested persons. In an emergency situation, such as the
need to have someone authorize immediate medical treatment,
the Court can appoint a temporary guardian. If necessary
the order can be entered the same day that the petition is
filed. The Court will also appoint a guardian ad litem on behalf of the
person who is the subject of the petition. The guardian ad litem will meet with the
person, explain the petition, advise the person of his/her
right to contest any aspect of the petition, the right to be
present at the hearing, the right to be represented by an
attorney, and the right to a court-appointed attorney if
the person cannot afford to retain an attorney. The
guardian ad litem will file a report and recommendation with
the Court. At the hearing the judge will listen to all of
the evidence and make a decision. If the judge decides to
appoint a conservator the judge will order the conservator
to post a bond, except in limited circumstances, or require that liquid assets
be placed in a restricted account, before the
conservator can assume control of the person’s assets. The
order will also stipulate that the conservator must obtain
Probate Court approval prior to selling real estate.
A person who
is appointed as guardian or conservator takes on important legal
responsibilities. The guardian or conservator must act in the best
interests of the person and must use the person’s money and property strictly
for that person’s benefit. The guardian or conservator must keep
good records related to his/her management of the person's income and property,
such as copies of bank statements and other financial accounts and records of
any sale or purchase of assets, and must be able to account for all
monies received and expenses paid. A guardian or conservator who
takes the person’s money or property and uses it for his/her personal benefit is
violating the law and risks civil or criminal prosecution.
The guardian
must file an annual report with the Probate Court that includes information on
the person’s living situation, medical treatment, social services received,
visits by the guardian, and a recommendation as to the need for continuation of
the guardianship. A conservator must also file an annual account. The
account must list all income and other assets received on the person’s behalf
during that year, expenditures, and the assets remaining at the end of the year,
with copies of statements verifying the balances in all financial accounts.
If a guardian has control of any of the ward's money some probate courts,
including Genesee County, also require the guardian file an annual account.
The Probate Court will schedule a hearing for
approval of the account by the probate judge.
The job of
a guardian or conservator can be difficult and time
consuming, but for those family members, friends, or others
in our community who can no longer care for themselves, a
conscientious guardian or conservator can make a critical
difference in their well being and quality of life.