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Conservatorships and Guardianships

October 31st, 2008 · No Comments

This week in the news, conservertorships and guardianships were a regular topic for discussion as one of the world’s biggest pop stars was placed under a conservatorship run by her father.  What exactly is a conservatorship, and how does it work?  A conservatorship occurs when a court issues an order allowing a person, business, or entity to have control over another person or entity.

In a conservatorship, the person with the control is called the conservator, while the person or entity being controlled is called the conservatee. A court will only appoint someone as a conservator if it is shown that the proposed conservatee is legally incapable of managing his or her own estate or affairs due to physical or mental disability or illness.

In many states, a conservatorship is also called a guardianship, while in many other states these concepts are different. In a guardianship, the person with control is called the guardian while the person being controlled is called the ward. In states where conservatorships and guardianships are different, conservatorships usually involve control over an adult’s financial affairs, while guardianships usually involve control over all affairs of a minor.

For example, in New York, a guardianship is used for both children and disabled adults, and for control over matters in addition to the estates of both. On the other hand, in California guardianships are used for minors while conservatorships are used for disabled adults. In Michigan, guardianships are used for minors, and for adults who cannot manage their own affairs – unless there is an estate involved, in which case a conservatorship is used. A person who cannot manage his or her affairs in Michigan may have both a guardian and a conservator.

Both guardianships and conservatorships may be general, in which the guardian or conservator has complete control over the ward’s or conservatee’s finances and conduct; or limited, in which the guardian or conservator only has control over certain aspects. For example, a conservator may be appointed to manage the conservatee’s financial affairs but not medical decisions, or vice versa. A guardian may be appointed to manage a ward’s financial affairs, but not the ward’s ability to decide where to live.

Conservatorships and guardianships are not something taken lightly by the courts.  In fact, these types of cases are often very controversial.  To begin the process, the person wishing to become conservator or guardian files a petition with the appropriate court identifying the potential conservatee or ward, and providing evidence to show why the person lacks capacity to control his or her own affairs. Once the petition is filed, the court will order a professional to evaluate the situation and provide a written report.  The potential conservatee or ward is allowed to object, in which case there will be a trial. If the conservatee or ward is not capable of participating, the court will appoint a different type of guardian: a guardian ad litem. A guardian ad litem represents the disabled person’s interests for the purpose of the court case, and will perform an investigation and report to the court.

If there is no dispute, the court will conduct a hearing in which witness provide statements and the court can then decide to appoint a conservator or guardian.  The appointment includes court documents that grant the conservator or guardian the authority to make decisions on behalf of the conservatee or ward.

Once appointed, the conservator or guardian must assess the conservatee’s or ward’s assets, and report this information to the court.  If the conservator or guardian will be required to make any payments on behalf of the conservatee’s or ward’s estate, a special account must be created.  The conservator is under close scrutiny and must report all expenses and payments to the court. The conservator or guardian may be reimbursed for expenses and paid for their work from the estate of the conservatee or ward, but court approval is required. Most guardians ad litem are volunteers, or are paid by the state.

Guardianship and conservatorship matters are generally handled by a probate court in the jurisdiction where the conservatee or ward resides.  While some of the general information could be public record, there many sensitive issues associated with these types of proceedings that are not public.  In matters involving minors or those without capacity, courts typically do not allow public access to this information. However, laws and procedures will vary by jurisdiction.  To learn more about conservatorship laws and courts, see the online resources available on CourtReference.com.

clperkins82

Tags: California · Courtreference.com · Michigan · New York · News

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