A conservatorship or guardianship is established through a legal action or proceeding. The person who files a petition with the Court requesting that a conservatorship or guardianship be established is the petitioner. In this proceeding, the court orders the appointment of a person (a conservator or guardian) to act as a decision maker for another person (the protected person or ward). The court bases this decision on clear and convincing evidence that the protected person or ward has been found to be unable to make necessary decisions on his or her own behalf. The court calls this making a finding of incapacity.
What is the difference between a Guardian and Conservator?
A guardian is appointed to make the personal decisions for the ward. The guardian has decision making authority for matters such as choice of place to live, medical decisions, training and education, etc. A conservator is appointed to make financial decisions for the protected person. The conservator typically has the power to contract, to pay bills, invest assets, and perform other financial functions for the protected person.
Guardianship
At a guardianship hearing the Court makes a finding based on clear and convincing evidence that the ward is incapacitated. The person appointed is called the guardian and the person under guardianship is called the ward.
Essentially, the guardian makes decisions regarding the ward’s basic personal needs to the extent the court grants the guardian such power. Such decisions may include the choice of where to live; to consent to or refuse medical treatment; and, care for personal property of the ward.
Conservatorship
At a conservatorship hearing the court makes a finding of incapacity in specific areas where there has been clear and convincing evidence to support the finding and preponderance of evidence that the person’s property will be dissipated or wasted without a conservator. The person appointed is called the conservator, and the person under the conservatorship is called the protected person.
The Guardianship and/or Conservatorship Process
At Tomney Law we have a straightforward procedure to begin the process of petitioning for the appointment of a Guardian and/or Conservator. The following is a basic outline of the procedure.
- Contact us either by telephone or through the links on the website.
- After you have contacted us, we will ask you to complete an informational questionnaire. This information is used to prepare the Petition.
- Once a Petition has been prepared, it will be forwarded to you for review and signature. The Petition is then filed in the appropriate County. Generally this is the County where the person for whom the Guardianship or Conservatorship is being sought resides. During the Court process, this person is referred to as the Respondent.
- The Court will schedule the matter for hearing. We will notify all interested parties of the hearing by mail. Prior to the hearing the Respondent will be served with a copy of the Petition by a Court Visitor. The Court will also appoint an attorney to represent Respondent at the hearing. If the Respondent resides in your home, the Court Visitor and Attorney will contact you to set up a time to meet the Respondent.
- Prior to the hearing date we will contact you to review for the Guardianship and/or Conservatorship hearing. This can generally be done over the telephone but we are always available to meet with you personally to discuss any questions you may have.
- On the date of the hearing, we will meet with you at the District Court in the appropriate County. It is necessary for the Petitioner to appear and for the proposed Guardian and/or Conservator to appear if that is someone other than the Petitioner. The Petitioner will be testifying at the hearing regarding the need for a Guardian and/or Conservator.
- If there are no objections to the Petition, the Court will issue an Order appointing the Guardian and/or Conservator and then issue Letters of Guardianship and/or Conservatorship.