We know from demographic studies that the senior population in the United States (age 65+) is anticipated to swell to 71.5 million members by the year 2030. As this segment of the population grows, so will the need for appointment of conservators and guardians for incapacitated older adults. When a person is deemed incapable of managing his or her own personal or financial affairs, a court will appoint a conservator or guardian to take control of those decisions. The scope of responsibility for a conservator or guardian may be limited to financial matters, or may include other aspects of the protected person’s life-health care, shelter, food and security. For the purpose of this posting, I would like to focus on adults lacking the capacity to handle their own personal and/or financial business. The relationship and duties of a conservator/guardian to a protected older adult will vary from jurisdiction to jurisdiction, but they are governed exclusively by state law.
Each state has an established judicial process to create conservatorships and guardianships; the roles are often distinguished by the degree of competency or the type of need demonstrated by the individual to be protected. Generally speaking, a conservatorship is created when a court grants one person or entity the authority to make financial decisions for another-to manage and protect the assets and property of the incapacitated adult. A guardianship is created when a court grants one person or entity the responsibility to manage the daily affairs of the incapacitated adult-including all aspects of health and personal care. State courts may use these terms interchangeably, but the corresponding duties by law are very specific as to scope, duration, accountability and revocability. For example, find information about guardianships and conservatorships for incapacitated adults in Virginia here.
How are these guardianships/conservatorships initiated? What safeguards are in place to protect this vulnerable segment of the population?
1) Typically, a petition is submitted to the appropriate court (likely a probate court) in the jurisdiction where the senior resides. The petition should include evidence supporting the contention that the individual does not possess the mental or physical capacity to make life decisions (e.g., medical affidavits, sworn statements from caretakers or family members). The petition should also identify the person or entity to be appointed guardian (often a relative, health care facility or nursing home administrator, or other interested party). Click here to see forms to start a guardianship proceeding in California.
2) The court then contacts the allegedly incapacitated person, his or her family, and any other individuals specifically directed by state statute. The person may have an attorney, and in some states the probate court may offer or appoint counsel. An investigator may be assigned to gather evidence regarding the individual’s alleged incapacity or disability, or the court can appoint a guardian ad litem to represent the senior’s interests. The guardian ad litem can advise the person of his or her rights, collect supporting evidence, and make recommendations on behalf of the senior. Evidence for both parties may include medical and mental health history, community and law enforcement records, and family, friend, neighbor or caretaker testimony. Click here to view information about the Mendocino County, California probate conservatorship investigation program.
3) If the guardianship is uncontested, the hearing should be brief. If contested, the judge may request additional evidence and testimony before declaring a finding of competency. If contested because of the selection of a particular guardian, the judge may order additional hearings or a trial to determine the suitability of the original appointment, or select another candidate. Usually, the court prefers the appointment of a family member if available and willing, assuming that no obvious conflict of interest appears. However, the judge has wide latitude to appoint anyone that he or she deems appropriate to fulfill the duties of conservator or guardian.
4) If the court finds that it is necessary to protect an incapacitated adult, the judge will determine what type of appointment to make. It may be a limited guardianship or conservatorship, granting decision-making authority over selected areas that the senior can no longer personally manage. Alternatively, the judge can assign a full guardianship over all personal affairs (financial, medical, social, residential, etc.). The court may also grant an “interim” or “emergency” appointment if the person appears at risk of immediate harm or seems incapable of making life-sustaining decisions. In that scenario, the guardian or conservator may hold a temporary assignment until a full hearing is scheduled to determine the senior’s competency.
5) ) Once an appointment is made, what safeguards are in place to ensure that the conservator or guardian is executing his or her
duties responsibly and ethically? In most jurisdictions, the conservator or guardian must post a surety bond and submit to an annual review of all records, receipts and accounting ledgers. If the judge is not satisfied with the documentation, reporting or submission timeline, or overall performance of the guardian or conservator, the court can sanction or remove the guardian for malfeasance. Also, if the guardianship is no longer necessary, the court can restore the rights to the formerly incapacitated adult upon a showing of competency. disease, or other forms of dementia) or by physical disability.
As our population ages, we must make guardianship/conservatorship monitoring a priority, not only through the courts but also through other state agency and community channels. There are prominent national organizations that can provide additional legal information and resources as well: the American Bar Association; the National Association of Attorneys General; the American Association of Retired Persons, and the National Guardianship Network. CourtReference can help you find your local probate court by providing contact information for every county in every state, with links to the clerk’s website where available. CourtReference also has additional online resources in the Self Help and Legal Research category; look for links that mention Conservatorship or Guardianship.