Guardianship And Conservatorship Law

Admin. On Aging, Sep 14, 2006

Guardianship and Conservatorship are Probate Court Orders that occur when the Court determines that an “allegedly incapacitated person” should be treated as a “protected person.”

A Guardianship is established when the Probate Court appoints a Guardian over a person. The Court must determine that the protected person is unable to make or communicate responsible decisions concerning himself or herself. The Guardian has the responsibility and authority to supervise and control medical, health care and residential matters concerning the protected person.

A Conservatorship is established when the Probate Court appoints a Conservator over a person. The Court must determine that the protected person is unable to make or communicate responsible decisions concerning his or her property or finances. The Conservator has the responsibility and authority to manage, supervise and control the real estate, financial, investment, personal property and income matters concerning the protected person.

The Guardian and Conservator may be the same or different persons. The appointment of the Guardian and Conservator may be pursued as separate or combined actions in Probate Court.

Some Important Points About Guardianship and Conservatorship

If a resident with Alzheimer’s disease or another dementia condition is involved with the Probate Court in legal actions of Guardianship and Conservatorship, it will most likely be an aggravated situation, and quite possibly an emergency. If the resident and the family have taken a prior opportunity to plan for decision making authority in light of the resident’s declining decision making ability, most likely there will be a DFPOA and POAHC in place.

If petitioning the Probate Court becomes necessary, it is most likely because the there are no Power of Attorney documents in place, or because the Power of Attorney documents that exist are not valid or are inadequate for the resident’s needs.