Guardians and Conservators
The traditional distinction between guardians and conservators is as
- Guardians - A guardianship
is a legal right given to a person to be responsible for the food, health
care, housing, and other necessities of a person deemed fully or partially
incapable of providing these necessities for himself or herself.
- Conservators - A conservatorship
is a legal right given to a person to be responsible for the assets
and finances of a person deemed fully or partially incapable of providing
these necessities for himself or herself.
In some jurisdictions, a guardianship may be referred to as a "conservatorship
of the person" or by some similar name, or there may be a type of
guardianship position which subsumes many of the tasks of the conservator.
This article assumes a the traditional division between legal guardianship
and conservatorship. For more information on conservatorship,
please see this accompanying article.
Under most circumstances where a person requires a legal guardian, the
person's incapacity will also impair his or her ability to manage financial
matters. Thus, petitions for guardianship are often brought at the same
time as petitions for conservatorship, and all associated proceedings
are combined. To avoid having to go through
When Is A Guardian Required for an Adult?
It may be necessary to petition a court to appoint a legal guardian for
- Who have a physical or mental problem that prevents them from taking
care of their own basic needs;
- Who as a result are in danger of substantial harm; and
- Who have no person already legally authorized to assume responsibility
Under some circumstances, it may be necessary for a court to appoint
an emergency guardian, who can act on your behalf during a crisis (such
as immediately following a car accident) until you regain your ability
to make your own decisions.
How is a Guardian Appointed?
The precise procedure will vary to some degree from jurisdiction to jurisdiction.
The typical steps are as follows:
- The person seeking the appointment of a guardian files a petition
with the probate court for the jurisdiction where the allegedly legally
incapacitated person resides. This petitioner is often a relative, an
administrator for a nursing home or health care facility, or other interested
person. A petition is ordinarily accompanied by medical affidavits or
other sworn statements which evidence the person's incapacity, and either
identifies the person or persons who desire to be named guardian or
requests the appointment of a public guardian.
- The court arranges for any necessary evaluation of the allegedly legally
incapacitated person. Often, this will involve the appointment of a
"guardian ad litem", a person who is appointed to provide
an independent report to the court on behalf of the allegedly legally
incapacitated person. If appointed, the guardian ad litem will meet
with the allegedly incapacitated person, inform that person of his or
her legal rights, and report back to the court on the person's wishes.
The guardian ad litem may also speak to the petitioner, to health care
providers, and to other interested individuals in order to provide the
court with full information about the allegedly incapacitated person's
condition and prognosis. Depending upon state law, the court may appoint
a doctor or professional to examine the allegedly incapacitated person.
- If the allegedly incapacitated person contests the appointment of
a guardian, a trial is scheduled during which sworn testimony will be
given, and at the conclusion of which the judge will decide if the petitioner
met the requisite burden of proof for the appointment of a guardian.
The allegedly incapacitated person is ordinarily entitled to appointed
counsel, if unable to afford a private attorney.
- If the allegedly incapacitated person consents to the petition, or
is unable to respond to inquiries due to disability, the court will
hold a hearing at which witnesses will provide sworn testimony to support
the allegations in the petition. If the evidentiary basis is deemed
sufficient, the guardian will be appointed.
- If a guardian is appointed, the judge will issue the guardian legal
documents (often called "letters of authority") permitting
the guardian to act on behalf of the legally incapacitated person.
What Are a Guardian's Duties?
The guardian makes decisions about how the person lives, including their
residence, health care, food, and social activity. The guardian is supposed
to consider the wishes of the incapacitated person, as well as their previously
established valued, when making these living decisions. The guardian is
intended to monitor the legally incapacitated person, to make sure that
the person lives in the most appropriate, least restrictive environment
possible, with appropriate food, clothing, social opportunities, and medical
A guardian may be required to post a bond, unless the requirement is
waived by the court. In most jurisdictions where bond is required, waivers
The Purpose of Court Supervision
The court supervises the guardian's choices on behalf of the ward. After
the initial appointment of a guardian, an initial review is usually scheduled,
followed by annual reports by the guardian to the court. The purpose of
this supervision is to ensure that the legally incapacitated person is
in fact benefiting from the most appropriate, least restrictive living
environment possible, with appropriate food, clothing, social opportunities,
and medical care.
How Can a Guardianship Be Ended?
A guardianship can be terminated by the court which created it. This
ordinarily happens if the legally incapacitated person recovers from the
incapacity that necessitated the guardianship. A particular guardian's
role may be terminated by the court or by resignation, in which case the
court will ordinarily appoint a successor guardian to take over management
of the legally incapacitated person's affairs. A guardianship also ends
upon the death of the legally incapacitated person.
What About Co-Guardians?
Sometimes, relatives of a legaly incapacitated person will request that
they be made co-guardians for that person. If this is done, depending
upon the laws of the jurisdiction and the terms of the appointment, it
may be necessary for both co-guardians to approve any decision made on
behalf of the legally incapacitated person. This can create needless delay
in the administration of emergency care, and can create difficulty in
establishing authority for even minor decisions. Thus, it is usually advisable
not to have co-guardians, but instead to name a single guardian, perhaps
with the other relative named as a successor guardian.
It is possible to avoid the necessity of a guardianship through estate
planning. A good estate plan will include a medical
power of attorney which will enable a trusted individual to make health
care decisions for you in the event of incapacity, and a general durable
power of attorney to permit a trusted individual to manage your personal
affairs. To a considerable extent, those documents can specify how you
wish to live, and how you wish to be treated, in the event of disability
- whereas a court or guardian may make decisions with which you would
disagree. In most cases, when these documents have been executed in accord
with the laws of your state, it will not be necessary for your loved ones
to seek the appointment of a guardian or conservator
should something happen to you - something that can be cumbersome and
emotionally taxing at an already difficult time.