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Guardians and Conservators: Reasons for Appointment
When children under 18 lose their parents due to death or incarceration, or when a person is no longer able to manage his or her personal affairs due to incapacity, the Probate Court may be asked to take action to protect these people. The Court will usually look to the last surviving parent’s Will for priority in nominating a “fiduciary” to make personal or financial decisions that are in the best interest of the child or incapacitated person. The types of fiduciaries that can be appointed are a Guardian or Conservator, with their powers being full or limited depending on the facts and circumstances of each case.
Generally speaking, a Guardian is responsible for taking care of your child’s physical well-being and a Conservator is responsible for taking care of the assets you have set aside to provide for your child. While many times these are the same person, often it is a good idea to name separate people to be checks and balances on one another. Otherwise, a person seeking to be appointed guardian or conservator can make his or her case in the petition for appointment as guardian or conservator, as is the case when an adult child or other close family member seeks appointment as a Guardian or Conservator. Oftentimes, a medical institution or creditor may seek appointment so that they can get paid and may ask that the Probate Court appoint an independent conservator for that purpose. When medical decisions need to be made and no patient advocate designation has been executed, then a guardian may be appointed for that purpose.
Petitioning for the Appointment of a Guardian or Conservator
A guardian or conservator is appointed much the same way a personal representative is appointed in a decedent’s estate’s case, which is by filing a petition with the probate court in the county of residence of the child or incapacitated person. The court will review the facts and circumstances and determine whether there is an “incapacity” such that the person “is impaired by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, or other cause, not including minority, to the extent of lacking sufficient understanding or capacity to make or communicate informed decisions.” A mentally disabled person is not always treated as fully incapacitated, and the court will look at other factors under the Mental Health Code in those instances. If the appointment is uncontested, the process is relatively smooth. When it is contested, however, the court will hear evidence from competing experts on the subject and may appoint an independent conservator or guardian while the case is pending.
Role of Lawyer in the Appointment Process
The main purpose of an attorney is to help the petitioner meet all of the requirements of the court. An experienced probate attorney will help speed up the process and ensure that the filings with the court are complete, the experts provide sufficient investigation and testimony to support an appointment, and will provide guidance as needed to conservators regarding when various notices, inventories, and accountings must be filed.
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