Beyond The Will, Client Compass

Guardianship and Conservatorship: Initial Filing and Emergency Orders

September 10, 2020


Continuing with this month’s focus on special needs planning and decision-making, and building off of a prior post introducing the concepts of guardianship and conservatorship, this post will focus on the initial procedural steps in a Guardianship or Conservatorship filing, including the possibility of obtaining emergency orders.

There is quite a lot of paperwork involved in Guardianship and Conservatorship cases, especially when both Guardianship (personal decision-making) and Conservatorship (financial decision-making) are at issue.  There is significant crossover between the two types of filings, but separate filings are required and often do move forward simultaneously.  Perhaps the single most critical document, in either filing, is the Medical Certificate:  a multi-page form report, which must be completed by a physician, a licensed psychologist, or a certified psychiatric nurse clinical specialist, within 30 days of the initial filing, detailing the patient’s diagnosis, impairments, risk factors, and recommended levels of care or supervision.  Not only must the Medical Certificate be dated within 30 days of the initial filing, it also most often needs to be updated prior to the final Hearing, because the Hearing rarely if ever takes place within that initial 30-day period.  It is critical to get the Medical Certificate property secured before the initial filing, and to monitor the timing to ensure adequate time for the provider to re-examine the patient and update the Medical Certificate prior to Hearing.

With respect to both the Medical Certificate – prepared and signed by the clinician – and the Petition for Guardianship and/or Petition for Conservatorship, it is important to determine exactly what authority is being sought.  Our laws favor personal autonomy, and the Court will leave as much decision-making authority vested in an individual as is appropriate under the circumstances.  With respect to Guardianship and personal decision-making, consider whether the subject individual may retain control over his or her own activities of daily living, personal relationships, religious engagement, travel,  choice of clinician, etc.  As for Conservatorship and financial decision-making, perhaps some autonomy may be maintained with respect to managing small amounts of cash, writing or approving checks for payment of routine expenses, etc.  To the extent that either Guardianship or Conservatorship may be limited rather than plenary, that is what the law will favor.

Once the initial filing is made, the Court will issue a Citation (legal notice) which must be served on all interested parties including the subject of the Petition him or herself.  The Citation will include a “return date” (deadline) by which any Objections must be filed, and a Hearing will be scheduled.  If it sounds like this might all take quite a bit of time, that’s because it does!  In the event authority is needed before all of this can be accomplished, a Temporary Guardian and/or Temporary Conservator may be appointed with authority generally not to exceed ninety (90) days.  This generally requires a Motion supported by Affidavit (yes, more paperwork), setting forth the nature of the “emergency” and the risk of harm in the absence of a temporary appointment.

Who can file for Guardianship or Conservatorship?  Who is entitled to receive notice?  On what grounds may an interested person object?  What additional authority may be requested?  What type of reporting and monitoring follows the appointment of a Guardian or Conservator?  Stay tuned as we continue to explore all of this and “Beyond” for the next several weeks.

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