There are circumstances where you would want someone to have legal authority to make decisions on your behalf.
If you develop a serious illness or become incapacitated and not able to manage your healthcare and financial affairs, ideally you would have a health care agent appointed through a medical Power of Attorney or financial agent appointed through a durable Power of Attorney.
However, if you never completed those documents or you did but the court is involved, you want to make sure your wishes are fully protected, and have documents that nominate a guardian and/or conservator. We’re going to explore why you should nominate a guardian and/or conservator and their respective duties.
A guardian is a person a court appoints to act as a fiduciary to make all personal and healthcare decisions for you, including where you live and what type of medical treatment you receive. The court will appoint a guardian if you are incapacitated and there is no suitable healthcare agent operating under a valid Health Care Proxy to make decisions for you.
Also, the court could appoint a guardian if there is conflict among your loved ones over how your affairs should be handled, and they end up in court.
You perhaps have heard about conservatorship in the news recently with the controversy swirling around pop star Britney Spears. A court had appointed her father to serve as her conservator after she was deemed mentally unable to make her own medical and financial decisions. The 13 year-long conservatorship was terminated in 2021 after the singer accused her father of mismanagement and abuse.
A conservator isn’t just for the young and famous. It can be for anyone such as an elderly person who has diminished mental capabilities that can no longer handle their personal matters.
If you are not capable of making your own financial decisions and do not have a suitable or valid Power of Attorney in place, the court could appoint a conservator to oversee your affairs. A conservator has the legal authority to take care of all your financial matters ranging from paying your bills to selling major assets like your home.
And like with the guardian scenario, if your loved ones are in conflict as to how your finances should be managed, they could petition the probate court and a judge could appoint a conservator to make those decisions.
Why Would I Need a Guardian and/or a Conservator?
There are illnesses that may render you unable to make your own decisions. These could include:
- Alzheimer’s Disease
- Being in coma
- Having a mental disability
If you are incapacitated and cannot communicate your wishes for medical treatment choices or how you want your finances handled, you need someone with legal authority to act on your behalf.
Related Article: Planning for Incapacity: Documents to Have and Steps to Take
Let’s say you were in an accident and sustained a brain injury that affected your cognitive ability. You need medical treatments, but you do not have the mental capacity to make your own health care choices. This is where a guardian would be appointed by the court to make those decisions for you if you do not have a Health Care Proxy.
Another example is if you developed Alzheimer’s Disease where you can no longer manage your bills, investments, or bank accounts. In this case, the court would assign a conservator to take care of your finances if there is no Power of Attorney in place.
In both situations, the court would hold a hearing to determine if you are mentally incapacitated and not able to manage your medical and/or personal affairs and then determine if a guardian and/or conservator is needed. Guardianship and conservatorship are always based on mental – not physical – impairment.
Why Should I Nominate a Guardian and/or Conservator?
You may already have a Health Care Proxy and Power of Attorney to carry out your respective medical and financial decisions in the event you cannot. So, you may say to yourself, “I thought that appointing a Health Care Proxy and a Power of Attorney would ensure that I wouldn’t need a guardian and/or conservator.”
Gentreo’s Chief Legal Officer Mary Kate D’Souza explains why you may want to nominate people who would serve as your guardian or conservator.
“Appointing healthcare and financial agents and naming alternates is the best way to avoid a court ordered guardian and conservator,” says Mary Kate. “However, in some cases when there is conflict among loved ones, someone may petition the court to revoke your healthcare and/or financial powers of attorney. In this situation, it helps the court to have a legal document stating who you would want to serve if the court needed to appoint a guardian and or conservator.”
Having people in the wings to serve as your guardian or conservator ensures you have someone you trust to act on your behalf in a time when you cannot speak for yourself. This gives you the upper hand should the court need to intercede in a crisis where a guardian or conservator is required.
“You should nominate a guardian and/or conservator because it is your opportunity to express your wishes as to who you would want to serve in those roles.” Mary Kate said. “In many states this expressed nomination shifts the burden to the other side if the matter ends up in court.”
How do I Nominate a Guardian and Conservator?
You can create a legal document naming a person you would want to serve as your guardian and/or conservator should the need arise. The document for a guardian is called Nomination of a Guardian. In the case of a conservator, it is known as Nomination of a Conservator. The nominees must be 18 years of age or older and can be anyone you trust, e.g., a family member, friend, or relative. Gentreo enables you to nominate a conservator and/or guardian in your Power of Attorney.
Responsibilities of a Guardian and Conservator
A conservator’s role is to oversee and manage the finances and assets of a person – elderly, a minor or disabled – who has been determined by a court as being impaired and not able to make their own decisions.
The responsibilities of a guardian are centered around the physical and mental health care of a person who is incapacitated or has a cognitive impairment. These include making healthcare decisions and ensuring the wellbeing of the person.
Both are required to file annual status reports to the court.
A guardian and a conservator are two separate legal powers. However, one person can serve as both if authorized by the court.
Health Care Proxy and Power of Attorney
As mentioned earlier, a Health Care Proxy and a Power of Attorney are two vital legal documents to have in your estate planning arsenal that would, in most cases, negate the need for a conservator or guardian. Here are the roles of each:
Let Gentreo Help You Create Your Estate Plan
We can help you create a custom estate plan for your specific needs. A Will, Trust, Power of Attorney, and Health Care Proxy are the legal documents you need to protect yourself, your wishes, and your loved ones.
In addition to creating your estate plan, we have a safe place to store it along with all your other important legal documents: the Gentreo Digital Family Vault.