A Q ON A GUARDIANSHIP OR CONSERVATORSHIP

WORDS : BERLY D. NELSON, SERKLAND LAW FIRM

The terms “guardianship” and “conservatorship” have been in the news recently with stories about a famous popstar being unhappy with her conservatorship. But guardianships and conservatorships can be important tools to help care for family members who are unable to properly care for themselves or make decisions. So what exactly are guardianships and conservatorships?

Q:

What is a guardianship or conservatorship?

A:

A guardianship or a conservatorship is something set up for a person under authority of the court for someone who has been deemed incapacitated or in need of protection. An incapacitated person is an adult who is so impaired by illness or disability that the individual cannot communicate responsible decisions about important aspects of his or her life. A person subject to a guardianship is often called a ward or protected person. A guardian or conservator is the person or entity appointed by the court to act on the protected person’s behalf while that person is still alive. Guardians and conservators are empowered by the court to make decisions on behalf of the protected person. It is different than a power of attorney, which is something that a person sets up on his or her own without court authority by way of a document that confers rights to another as that person’s attorney-in-fact.

Q:

What is the di erence between a guardianship or conservatorship?

A:

Generically, a guardianship typically gives a guardian authority to decide where the protected person is going to live and what sort of medical treatment she will receive. A conservatorship typically gives authority to the conservator to decide how to handle the protected person’s finances and legal affairs.

Q:

What sort of authority does a guardian or conservator have?

A:

The guardian’s authority can include residential, medical, legal, educational and vocational powers, among others. A conservator’s authority is typically limited to financial and legal powers. A guardianship or conservatorship is sometimes utilized when a power of attorney is not available or insufficient. The process is often utilized when an adult child needs to manage a cognitively impaired parent’s affairs and there is a family dispute as to who should be making decisions. While guardians and conservators are often family members of the protected person, social services agencies may also serve as guardians, and banks or financial groups can be appointed as conservators. Courts will consider if a protected person previously nominated someone to serve as guardian or conservator, or if there is a power of attorney or health care directive in place, when determining whom to appoint as guardian or conservator.

Q:

Can more than one person or entity be appointed as guardian or conservator?

A:

Yes, there may be more than one guardian or conservator for a person, but if they cannot agree on a course of action, it may require further court involvement. Sometimes in families where conflict could make appointing siblings as co-guardians/conservators difficult, third-party guardians or conservators (like a bank) are utilized successfully.

BERLY D. NELSON is a shareholder attorney with the Serkland Law Firm in Fargo, North Dakota. He practices in the areas of commercial and general civil litigation, including a focus on trusts and estate litigation.

FOR MORE INFORMATION, call 701-232-8957, email bnelson@serklandlaw.com or visit serklandlaw.com.

This article should not be considered legal or tax advice and should not be relied upon by any person with respect to his/her specific situation.