Guardianship and Conservatorship
For the person who is no longer able to understand enough to sign documents, other legal tools are available. For example, the Social Security Administration and the Veterans Administration can appoint a representative payee to receive and handle the benefit checks on behalf of a person who is mentally or physically unable to handle the money. The government agencies will consider handling the person's benefits this way only after being notified that the person is having a problem handling the money himself or herself; the agencies are required to investigate any report about the person's inability to handle the funds before they arrange for a representative payee.
The power of a representative payee is limited to managing a person’s benefits at the government agency that grants it. If the person has other money or property that he or she cannot manage, it may be necessary for a state court to appoint a conservator or a guardian. A conservator handles only finances; one is appointed by the court if the person owns a house or other property that needs management or protection. A guardian generally makes decisions about health care and other personal matters, but not about significant financial matters. A guardian must honor a person's advance directive for health care. A person for whom a conservator or guardian has been appointed loses control over his or her own finances. For that reason, the court will generally not grant them if there is a less restrictive option available to handle the person’s needs.
After a petition for conservatorship and/or guardianship is filed with the court, notices and copies are given to the person for whom the conservatorship and/or guardianship is requested, and mailed to close relatives. The court also appoints a court visitor who will interview the person along with other people who have information that may be useful, including healthcare providers. If there is an objection within 15 days, the court will hold a hearing to determine whether a guardianship and/or conservatorship is needed. If there are no objections, the judge generally signs the order appointing as conservator and/or guardian the person who asked for those powers. There are annual reporting requirements for both a guardianship and conservatorship. The guardian and conservator can be the same person or different people, and there can be one without the other.
A conservator and/or guardian usually has broad authority. A conservator is required to give a financial bond to guarantee that money or property will not be misused. Both a conservator and a guardian must make a written report to the court once a year.
Please contact us for help with conservatorships and guardianships.
