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So You Want to be Guardian?

Occasionally, I will meet with someone interested in becoming a guardian over an individual (usually a family member) because that individual is not taking care of their self or their money.  Sometimes this came as a result of a conversation with a doctor or hospital social worker, and sometimes it is because the person interested in becoming guardian read something on the Internet, or a friend told them this is what they should do.

After understanding more of the facts of this person’s situation, my initial reaction is always to figure out if there is an alternative other than the guardianship or conservatorship.  Explaining what the difference is between a guardianship and a conservatorship is often the first step in advising the person that has met with me.  The Guardian is in charge of making medical decisions for an incapacitated individual,  where the conservator is the person in charge of managing the incapacitated individual’s assets- whether that is real estate, bank accounts, or other financial assets.   The most common alternative is to execute power of attorney documents (1 for financial management and 1 for health care decisions).   Power of attorneys by their very nature are permissive documents.  This means that it is allowing someone else to help, but not taking any authority away from the individual giving someone power of attorney.   For example, if mom (Jane) gives power of attorney to daughter (Sally), Sally can then write checks, pay bills, etc.  But, Jane can also do all of these things.  Additionally, Jane can at any time change her power of attorney to someone else.  Jane still has a lot of control.

The guardianship and conservatorship is different- this is the Court entering a judgment that says the individual cannot manage their affairs any longer, and putting someone else (the guardian/conservator) in charge of that person’s affairs.  The person who needs help (the ward) no longer has the same rights that an adult would normally have (including the right to make bad decisions!).   This is a very serious step, that is sometimes the only alternative.

Deciding to petition the Court to establish Guardianship/Conservatorship over a loved one is a very major decision.  Next time, we’ll go over some of the hurdles to becoming Guardian/Conservator and also what the actual responsibilities are for this person.