Learn About Guardianship or Conservatorship
By: Julie Garber
Elder Law Associates Newsletter dated June 13, 2018
Guardianship—called conservatorship in some states—is a legal proceeding in a state court to appoint someone to exercise some or all of the legal rights of a mentally incapacitated person. The incapacitated individual is typically referred to as the "ward".
How Mental Incapacity is Determined by a Court
How is a person determined to be mentally incapacitated and in need of a guardian or conservator?
The exact procedure varies by state, but the following steps are generally taken.
A petition that questions the individual's mental capacity is filed with the appropriate state court. Any "interested person" can usually file this petition, such as the person's family members, friends, or even professional advisors.
The court will appoint a committee of physicians, nurses, and perhaps social workers to examine the incapacitated person. Sometimes the court assembles this committee, or the court might order the attorney for the person who filed the petition to select professionals to serve in this capacity.
The court will appoint an attorney to represent the incapacitated person. Again, either the court itself will be responsible for finding the attorney or the attorney for the person who filed the petition might be ordered to select someone.
The committee will meet with and examine the allegedly incapacitated person.
Each member of the committee will be required to meet in person with the individual.
The committee will prepare a written report about the individual’s mental and physical condition and file it with the court. Each committee member will be required to contribute his or her own observations.
The attorney for the incapacitated individual will be required to meet with him in person to inform him about the court proceeding and read the petition to him.
The attorney will prepare a written report detailing his meeting with the incapacitated individual and file it with the court. The report should include a statement as to whether he believes the person understood the purpose of the meeting and the contents of the petition.
The judge will review the petition, the committee’s findings, and the attorney’s report. He'll take into consideration the expertise provided by the medical committee's report as well as the observations of the attorney.
A hearing will be held where arguments can be made for or against the person’s need for a guardian or conservator. The incapacitated person's court-appointed attorney and all interested persons and their attorneys are typically required to attend this hearing.
The judge may have questions for some or all of them to assist him in making the right decision. The incapacitated person individual isn't required to attend the hearing if he's too ill to do so.
The judge will make the final determination as to whether the individual in question is completely competent or partially or totally incapacitated. He'll combine the written findings of the medical committee as well as the testimony of all interested persons and make a decision as to the individual's overall mental abilities or disabilities.
The Goal of the Court
The judge will typically look for the least restrictive way to assist the person who is determined to be incapacitated. If he's determined to be partially incapacitated, a guardian or conservator might be appointed only for limited purposes, such as paying his bills or overseeing his investments.
If the person is determined to be totally incapacitated, all of legal rights are typically handed over to the person or institution who is appointed as his guardian or conservator.