CONSERVATORSHIPS - THE BASICS
Filing fee: $175
Guardianships and Conservatorships may be initiated for either adults or minors in the probate court. Below you will find frequently asked questions about Guardianships and Conservatorships. Please note that court staff are prohibited by law from giving legal advice. This includes instructing litigants on the type of guardianship or conservatorship to pursue.
Click here to print a petition packet for appointment of conservator or protective order.
WHAT IS A GUARDIAN AND WHAT IS A CONSERVATOR?
A Guardian is a person who is given Probate Court authority to be responsible for the personal and physical well being of an adult who is called a Legally Incapacitated Individual (LII). The Guardian has the same powers and duties over that LII as parents have over their children. A prospective Guardian may be nominated by petition (filed with the Probate Court) or may be named in a will. A Conservator is a person who is given Probate Court authority to be responsible for the assets (called an “estate”) of an adult, who is called a Protected Individual (PI). A Conservator may be nominated by a petition filed with the Probate Court.
WHEN IS A CONSERVATOR NEEDED?
When the individual is unable to manage his or her property or business affairs effectively because of either:
-Detention by a foreign power
-Chronic use of drugs
-Age or physical infirmity*
*If the individual joins in the request for a conservator’s appointment and, proper management is required because of either of the following:
-The individual has property that will be wasted or dissipated, or
-Funds are needed for the support, care and welfare of the individual or those entitled to be supported by that individual
WHO MAY PETITION THE COURT FOR THE APPOINTMENT OF A CONSERVATOR?
-The alleged PI (protected individual)
-Any person who is interested in the individual’s estate, affairs or welfare
-Any person who would be adversely affected by the lack of effective management of the individual’s property and business affairs
WHAT HAPPENS AFTER THE PETITION FOR GUARDIANSHIP AND/OR CONSERVATORSHIP IS FILED?
A hearing date will be set in approximately 3 to 4 weeks
-The petitioner (the person who signs the petition) must serve a Notice of Hearing and a copy of the Petition on the alleged LII and PI and all other interested persons
-The petitioner must file a Proof of Service of the Petition and Notice of Hearing with the Court prior to the hearing
-The case will be dismissed if the proper persons have not been served, or if the Proof of Service was not filed -A Guardian Ad Litem will be appointed to protect the interests of the alleged LII or PI*
-The Court will appoint legal counsel if the Guardian Ad Litem determines it is in the best interest of the alleged LII or if the alleged LII wishes to contest the petition, limit the Guardian’s powers, or object to a particular person being appointed Guardian
-The Court will conduct a hearing to determine whether appointing a Conservator, Guardian, and/or Limited Guardian is in the best interest of the individual. The petitioner must attend unless otherwise directed by the Court
-The Court will appoint a Conservator, Guardian, and/or Limited Guardian only to the extent necessary, and only when satisfied that such an appointment will serve the best interest of the individual
-The Conservator, Guardian, and/or Limited Guardian must file an Acceptance of Appointment or a bond, as required by the Court -The Conservator, Guardian, and/or Limited Guardian cannot act until the Court issues Letters of Authority and/or Letters of Guardianship If an emergency exists, the Court may appoint a Temporary Guardian or conservator at a hearing following shorter than normally required notice.
* Exception: If the individual has chosen counsel or the alleged PI is mentally competent but aged or physically infirm.
WHAT ARE THE DUTIES OF THE CONSERVATOR?
-Accumulate, preserve and protect the assets of the protected individual
-Handle those assets as any other competent adult would handle his or her own funds
-Expend reasonable sums as necessary for the ordinary care and support of the protected individual
-Ask court permission before selling or otherwise disposing of the protected individual’s real estate (by petition with a copy of the most recent assessor statement or tax statement showing the state equalized value) Conservators may be held responsible for improper management of the funds if it is a result of bad faith or negligent handling.
WHEN MAY A GUARDIANSHIP OR CONSERVATORSHIP BE TERMINATED?
-When the individual is no longer legally incapacitated or in need of protection
-When the individual has moved to another state and this court is presented with proof of authority from that state, and a receipt of the individual’s funds (if applicable) or
-Upon the individual’s death
To learn more: Please click on this link to learn more about conservatorships.