Guardian and Conservator Disputes

Our society is aging, and our parents and friends are living longer.  This is a good thing. However, one unfortunate consequence is that more and more people in our aging community are experiencing loss of memory and the ability to care for themselves.  This is also true for the disabled members of our society.

What happens when a loved one can no longer take care of himself or herself?  The preferred solution is to meet with elder care lawyers and prepare powers of attorney, trusts, healthcare directives, and other planning documents that transition decision-making away from the disabled adult toward a trusted loved one or advisor. Unfortunately, not all of our aging adults complete this process in time or there are mistakes in the planning.  In those events, the only solution may be to involve the court system.

Understanding Guardianships and Conservatorships

When an adult becomes incapacitated, due to injury, illness, or old age, it may be necessary for another person to take care of him or her and manage his or her financial affairs. If the adult is no longer capable of making or communicating significant responsible decisions concerning his or her health or finances, the Probate Court may, upon the petition of an interested person, appoint a guardian or conservator for the adult, who would then be known as the ward.

A guardian is someone appointed by a court to manage an incapacitated adult’s person, by making necessary decisions about medical care, daily living, and residence.

A conservator is someone appointed by a court to manage an incapacitated adult’s property, by protecting assets and handling income and expenses.

Guardians and conservators owe a special duty of care, called a fiduciary duty, to act in the best interests of the incapacitated adults they represent.  The Court may appoint the same person to serve as both guardian and conservator, if that is appropriate.  However, the Court must consider other protections already in place, such as powers of attorney.  The Court has a duty to impose the “least restrictive means” necessary to protect the incapacitated adult.

Legal Disputes Surrounding Guardianships and Conservatorships

Legal disputes in this area can arise in a variety of ways.  Sometimes, family members and friends disagree over whether the court should appoint a guardian or conservator, or they disagree over who should be appointed. Sometimes, the incapacitated adult objects to the appointment of a guardian or conservator.  After the appointment, a family member or friend may discover that a guardian or conservator is not acting in the best interests of the incapacitated adult.

The process for the appointment of a guardian and conservator is understandably complex.  We do not want to take away an adult’s constitutionally protected right to make decisions for himself or herself unless that adult is clearly incapacitated and unable to function without a guardian or conservator.