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Adult Guardianship 

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ADULT GUARDIANSHIP 
Frequently Asked Questions

1. What does "guardianship" mean?

2. What is a guardian?

3. What does "incapacitated" mean?

4. Who needs a guardian?

5. How is the decision made that a person needs a guardian?

6. What is a conservator?

7. What does "conservatorship" mean?

8. Who needs a conservator?

9. Who may serve as a guardian or conservator?

10. How is a guardianship/conservatorship established?

11. What happens after guardianship or conservatorship is established?

12. What are the duties of a guardian and a conservator?

13. Are there alternatives to guardianship and conservatorship?

 


1. What does "guardianship" mean?

Guardianship is a legal relationship established following a court hearing in which a guardian is appointed by a judge or jury to make personal decisions for another person who lacks capacity. The authority granted to a guardian may cover virtually all aspects of the ward's life, or it may pertain only to certain aspects.

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2. What is a guardian?

A person who has been appointed by a court (usually the probate division of the circuit court) to have the care and custody of the adult person who has been legally determined to be "incapacitated."

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3. What does "incapacitated" mean?

An incapacitated person is unable by reason of any physical or mental condition to receive and evaluate information or to communicate decisions to such an extent that he or she lacks the capacity to meet essential requirements for food, clothing, shelter, safety or other care such that serious physical injury, illness or disease is likely to occur.

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4. Who needs a guardian?

A guardian may be appointed when a person lacks capacity to make personal decisions, and may be at risk of harm without the protection of a guardian.

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5. How is the decision made that a person needs a guardian?

The process varies, but in general involves these steps.

  • The alleged incapacitatied person is examined to assess capacity, usually by a doctor, psychologist or social service provider--or some combination of these professionals.

  • Someone petitions the appropriate court to declare the person in question incapacitated and to appoint a guardian.

  • The alleged incapacitatied person and certain family members are notified about the petition and hearing.

  • A hearing is held, and the judge or jury determines whether or not a guardian is necessary.

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6. What is a conservator?

A conservator is a person or a corporation, such as a bank or trust company, appointed by the probate division of the circuit court to manage the property of an adult person who has been legally determined to be disabled.

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7. What does "conservatorship" mean?

A conservatorship protects the rights of those individuals who are unable to manage their financial resources due to being a "disabled person" (defined as "one who is unable by reason of any physical or mental condition to receive and evaluate information or to communicate decisions to such an extent that the person lacks ability to manage his or her financial resources.")

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8. Who needs a convservator?

A conservator may be appointed when a person, due to a disability, is unable to handle his or her financial affairs without supervision.

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9. Who may serve as a guardian or conservator?

The court considers suitability before appointment. The following priorities apply:

  1. The incapacitated or disabled person's choice of guardian or conservator is given priority consideration, provided that choice is reasonable and the nominee is eligible to serve;

  2. Any eligible person named in writing when the incapacitated or disabled person was capable of making and communicating a reasonable choice (within five years prior to the hearing);

  3. The spouse, parents, adult children, brothers and sisters, and other close adult relatives of the incapacitated or disabled person;

  4. Any other eligible person, including the Public Administrator, may be considered.

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10. How is a guardianship/conservatorship established?

The process begins when a "petitioner" files an application for the appointment of a guardian and/or conservator in the probate division of the circuit court in the county where the alleged incapacitated or disabled person (the "respondent") is domiciled.

After an application is filed, the court will set a date for a hearing. Notice of the application must be served upon the respondent. Notice of the hearing date will be mailled to the respondent's spouse, parents, children, other close relatives over the age of 18, any person acting in a representative capacity with respect to any of the respondent's financial resources, and any person having care and custody of the respondent.

The petitioner and the respondent must be represented by attorneys. The court will appoint an attorney for the respondent. The attorney must visit with the respondent prior to the scheduled hearing to exchange information that would safeguard and protect the interests of the respondent. The County Counselor's Office will appear as attorney for the petition filed.

At the court hearing, the petitioner must meet a burden of proof to demonstrate the respondent is incapacitated and/or disabled. The judge or jury will make a decision on the capabilities of the respondent and rule on the degree of supervision necessary for the protection of the respondent. The court's decision will allow for the greatest amount of personal liberty and freedom possible, and depends on whether the respondent is found to have a partial or total incapacity or disability. The court issues letters appointing either full or limited guardianship and/or conservatorship.

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11. What happens after a guardianship or conservatorship is established?

An annual review by the probate court is required to assure the guardian/conservator is functioning properly and to assure the incapacitated and/or disabled person remains in the least restrictive environment, and that funds are being used appropriately. The court also reviews the status of the person and the continued need for a guardian and/or conservator.

This process involves the guardian completing an annual written report using a form the court will send each year. An annual court hearing is not typically required.

If the respondent has assets or income in an amount greater than a minimal amount, the conservator must hire an attorney who may be paid with estate assets to file an inventory, annual settlement and othe required court filings.

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12. What are the duties of a guardian and a conservator?

A guardian must always act in the best interest of the person ("ward") and make decisions relative to the ward's care, treatment, shelter, education, support and maintenance. A guardian must assure that the ward resides in the least restrictive setting reasonably available and receives all medical care that he or she may need. A guardian may give necessary legal consent for the ward's treatment. However, a guardian may not admit the ward to a mental health facility for more than 30 days without a court order. A guardian must report to the court, at least annually, on the ward's physical condition.

A conservator, under the supervision of the court, is responsible for the protection and management of the person's ("protectee's") financial estate. The conservator must properly invest the protectee's assets, apply such assets for the protectee's care and maintenance, and account for all funds received and expended on behalf of the protectee. Because of the strict accounting requirements, the conservator must administer the protectee's estate properly, no matter how large or small it may be. The conservator should receive legal advice before investing or spending the protectee's assets.

Refer to Probate Court Form 10194a for full details.

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13. Are there alternatives to guardianship and conservatorship?

Depending on the facts and circumstances, legal documents such as Power of Attorney, Durable Power of Attorney for Healthcare, Living Wills and/or Advance Directives may also fulfill your needs. They are not court appointed. Use caution when making these decisions. You may wish to consult with an attorney in order to have these documents drafted for your specific needs.

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