If a person is incapacitated (or a minor) and is unable to administer their own affairs, such as in dealing with their health concerns and personal safety matters, or is unable to properly and safely manage their assets, it may be necessary to have a conservator and/or guardian appointed. This is often necessary if other planning is not completed and the individual is no longer capable of completing any planning. Executing a power of attorney would be sufficient in most situations to avoid the need for the establishment of a guardianship or conservatorship. However, these types of proceedings are the “safety net” for an individual who has failed to properly plan but is in need of assistance for their own safety.
Procedure for Appointment
Once it is determined that an individual or their assets are at risk, a person will need to file a petition with the court seeking the appointment of a conservator and/or guardian. In most situations, another attorney will be appointed by the court to represent the proposed ward to report to the court as to whether it is in their best interests for the appointment of a guardian and/or conservator for them. Such an appointment of a guardian/conservator involves the removal of many rights of an individual and should not be taken lightly. If the incapacity of the person is in question, it will be necessary to secure the opinion of a physician qualified to make a determination that the person
The court-appointed representative has limited authority. Only certain actions can be taken without first obtaining court authority. Thus, for example, if there is a need to change the investments, an unusual expenditure, or the relocation of the ward to a more restrictive environment, these all would require the approval by the court before taking such steps.
Annual Reporting Procedures
Following appointment of a guardian/conservator, it will be necessary for the guardian/conservator to report to the court on an annual basis of the status of the ward and the ward’s finances. For the conservator, this will require an accounting for all assets, plus itemization of income and expenses since the last reporting period. This accounting will be reviewed by the court and supporting information should be made available to the court upon request. The guardian will need to report on the status of the ward and the care they are receiving. These annual reports will need to continue until the proceedings are terminated by the court.