Beyond The Will, Client Compass

Guardianship and Conservatorship: Standing, Notice, and Objections

October 8, 2020


As promised in my prior post on initial Guardianship and Conservatorship filings, this post will expand on issues of standing, notice, and objections.

Who can file for Guardianship or Conservatorship?  Any interested party may file a Petition for Guardianship or Conservatorship.  This can be a family member, friend, or neighbor.  It can also be a protective services agency or a hospital or other facility.  The Petitioner may request his or her own appointment or may seek the appointment of another individual to serve as Guardian or Conservator.  Any qualified person may be appointed, with priority given as follows: first, to an individual nominated by the incapacitated person in a durable power of attorney; next, to the incapacitated person’s spouse; next, to a parent; and finally, to any other person the Court deems appropriate.

Who is entitled to receive notice of a Guardianship or Conservatorship?  Notice must be served on the incapacitated person, and to the incapacitated person’s closest family members: his or her spouse and children; or if no spouse or children, to his or her parents, brothers, and sisters; or if none, to his or her heirs at law as provided by statute.  Notice also must be given to any person who is already serving as Guardian or Conservator or who holds the incapacitated person’s power of attorney or health care proxy; to any person who has care or custody of the incapacitated person; and to anyone with whom the incapacitated person has resided during the preceding 60 days.  Under certain circumstances, the Department of Developmental Services and/or the U.S. Veteran’s Administration must also receive notice.

On what grounds may an interested person object to a Guardianship or Conservatorship?  Objections to a Guardianship or Conservatorship typically fall into two categories.  In one category of contested matters, there are arguments over the extent of the incapacitated person’s disability and the extent of protections needed.  In those types of cases, the Medical Certificate is subject to challenge, and the objecting party often brings forth his or her own medical expert to rebut it.  In the second category of contested matters, the arguments center on the qualifications of the person nominated to serve.  The term “qualified person” is not statutorily defined.  The Court has broad discretion in considering the suitability of the nominated Guardian or Conservator in reference to the specific needs of the protected person.  In situations where family members are arguing over who is more qualified or better suited to serve, the resolution often includes the appointment of a neutral fiduciary who can look after the incapacitated person’s needs without bias, sometimes an attorney or other professional.

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