What are Guardianships and Conservatorships?

For some, legal protection may be necessary even after they have entered adulthood. It could be an injury, medical reasons or mental illness that prevents them from caring for themselves or managing their finances or property.

Stewart, Melvin & Frost estate planning and probate attorney Brook Davidson is our guest this morning to discuss what is protection is available in these situations.

Brook’s firm – Stewart, Melvin & Frost – is one of Northeast Georgia’s largest and fastest growing law firms and is widely respected as an “Uncommon Practice” – the firm features an experienced team of attorneys, each of whom specializes in a particular practice area.

Question: What is can be done legally if someone cannot take care of themselves?

Brook: The law allows for someone to be named guardian or conservator for the individual needing help. In the legal process, they are referred to as an “incapacitated adult” and “proposed ward.” The court can provide help when a person becomes unable to make routine decisions, such as how and where they live, who cares for them, what kind of medical treatment they receive, or how their finances are managed.

Question: What is the difference between a guardianship and a conservatorship?

Brook: A guardianship is established when a person lacks sufficient capacity to make or communicate significant responsible decisions concerning his or her health or safety. A conservatorship is put in place when a person lacks sufficient capacity to make or communicate significant responsible decisions concerning the management of his or her finances or property. A guardian or conservator is typically a family member, friend or trustee appointed by the court.

Question: What is the process for a guardian or conservator being appointed?

Brook: The process starts with a family member, person responsible for the individual’s care, or a facility such as a nursing home filing a petition requesting the court appoint a guardian/conservator. The petition will include information such as the mental or physical condition of the proposed ward, how they are currently being cared for and the reasons for filing the petition. There will be a hearing before a judge. To safeguard the incapacitated adult’s right to due process, they are entitled to notice of, and ability to attend all legal proceedings. In addition, the incapacitated adult may obtain representation by an attorney, present evidence, and confront and cross-examine all witnesses.

A judge will make the final determination as to whether to have a guardian/conservator appointed.

Question: If the judge appoints a guardian or conservator, what are the responsibilities of the guardian or conservator?

Brook: The guardian is responsible for:

• Determining and maintaining residence of the incapacitated adult
• Providing informed consent to medical treatment and supervising the treatment
• Consenting to and supervising non-medical services such as education, psychiatric or behavioral counseling
• Making end-of-life decisions
• Paying debts and other expenses
• Maintaining their autonomy as much as possible

The guardian may be required to report to the court about their activities on an annual basis.

A conservator is responsible for:

• Organizing, gathering and protecting assets
• Arranging appraisals of property
• Safeguarding property and assets from loss whenever possible
• Managing income from assets
• Making appropriate payments
• Obtaining court approval prior to any sale of major assets
• And reporting to the court the estate’s status on a regular basis

A guardianship or conservatorship is put in place to protect a person and ensure their needs are met. Many are temporary arrangements, meant to protect an incapacitated individual until he or she regains capacity.

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