There are times in people’s lives where they may not have legal decision-making capabilities. People who are under eighteen, people who are suffering from dementia/Alzheimer’s, people who have been incapacitated in an accident, or people that are not making safe or appropriate decisions for themselves are all people that may benefit from a guardianship or conservatorship.

If someone has a power of attorney or a health care directive, these tools will allow an agent to make decisions for them when they do not have capacity. "Incapacitated person" means an individual who, for reasons other than being a minor, is impaired to the extent of lacking sufficient understanding or capacity to make or communicate responsible personal decisions, and who has demonstrated deficits in behavior which evidence an inability to meet personal needs for medical care, nutrition, clothing, shelter, or safety, even with appropriate technological assistance.

A health care directive or a power of attorney are less restrictive alternatives to a guardianship or conservatorship because the court does not have to be involved, but that requires provisions be made ahead of the event causing impairment.

What are Guardianships and Conservatorships?

A guardianship is a court proceeding to appoint someone to make personal decisions for someone else, such as consenting to medical care, or choosing where the person will live. In guardianship cases, the person who needs help is called a “ward” or “respondent.” 

A conservatorship is a court proceeding to appoint someone to manage someone else’s property or finances to provide for the support, care, education, health, and welfare of the individual. A conservatorship is tailored to transfer financial decision-making power to the conservator only in the areas of life where protection and supervision by a conservator has been proven necessary. A conservatorship does not assume that the proposed protected person is incapacitated in all areas of his or her life so they can still marry, make a will, or vote unless specified by the court that the individual is incapable of doing so.

In both guardianship and conservatorship matters, it must be shown that there is no other less restrictive way in which to assist the individual. Court intervention is considered a “last resort” as the courts are ultimately stripping away someone’s civil liberties and ability to make his or her own personal choices. This creates a high standard with less opportunity for abuse of discretion. Additionally, the appointed guardian or conservator must report to the court (usually on an annual basis) as to the status and general wellbeing of the protected person, what money was received by the protected person, how it was spent and why. The guardian or conservator must show that a guardianship or conservatorship continue to be necessary. The guardian and conservator may be held personally liable and responsible if that person is not making decisions in the best interests of the protected person, including spending the protected person’s money on anyone or anything that is not directly for the benefit of the protected person.

Both guardianships and conservatorships may be requested on an emergency, temporary, or long-term basis. However, a protected person retains the right to seek termination via a petition for restoration (a petition to establish why the guardianship or conservatorship is no longer necessary) at any time.