Beyond The Will, Client Compass

Cast of Characters Involved in a Guardianship and Conservatorship Proceeding

October 22, 2020


These proceedings often involve a lot of parties, and often times clients are surprised that so many “extra” people are involved in their family affairs.

Who are the Cast of Characters?:  As we have previously discussed, these cases are often contested so there are always two (or more) sides arguing over the need for a guardianship or conservatorship and/or suitability of the proposed fiduciary.  Typically both sides have lawyers.  If the Respondent has immediate and substantial health, safety, and welfare needs, the Court can appoint a Temporary Guardian, and such a person could be a neutral third-party.  Similarly, if there is a risk of substantial harm to Respondent’s property, income, or entitlements during the proceeding, the Court can appoint a Temporary Conservator, and again such person could be a neutral third-party.  As Tiffany Bentley recently wrote in a blog, in situations involving the suitability of a proposed Temporary Guardian or Conservator, the Court often appoints a neutral third-party who will be unbiased when protecting the Respondent.

The Respondent is the central character in these proceedings, and the Court wants to ensure that their voice is heard as much as possible and that their specific needs are known.  The Court often appoints counsel for the Respondent to represent the Respondent’s legal position during the proceedings.  Sometimes the Respondent themself is the objector to the requested relief.  In addition, the Court often appoints a Guardian ad Litem to investigate a specific issue, like to review accounts, a proposed estate plan, or a proposed treatment plan, and then to report back to the Court.  Less usual, but possible, is if real estate that needs to be sold quickly during the proceeding, the Court could appoint a commissioner to sell real estate.  Depending on the Respondent’s needs, there could be a geriatric care manager involved, or a Conservator could engage third-parties to pay monthly bills, prepare tax returns, etc.

Who serves in these types of positions?:  The Petitioner usually retains a private lawyer.  If any other family members have objected to the requested relief, such family members usually retain a private lawyer.  The court-appointed attorney for the Respondent, neutral third-party Temporary Guardian or Temporary Conservator, Guardian ad Litem, or commissioner are typically attorneys who are on the Court’s “list” of qualified individuals.  Sometimes counsel suggests a particular attorney or other professionals who has the necessary skill set to serve in the role.  These court-appointed positions are typically paid for by the Respondent’s assets if they are not indigent, and the fees are subject to Court approval.  The geriatric care manager and home health aid are usually licensed nurses or social workers who specialize in geriatrics.

All in all, these cases involve many different parties, each with different views, duties, and obligations concerning the welfare of the Respondent.  If your family is involved in a guardianship or conservatorship proceeding, it is important to know the role of each party.

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