Beyond The Will, Client Compass

Understanding Conservatorship and Guardianship: Examining the Austen Family

April 14, 2021


To best enjoy this post, please be sure to first read A Family History of the Austens

After suffering a major stroke in response to her husband’s untimely death, Juliet remains alive but unresponsive in the hospital. She will need an individual or individuals to make health care and other personal decisions, as well as financial decisions. Juliet likely requires both a guardian and a conservator to act on her behalf.

Due to Juliet’s incapacity and her inability to make her own decisions related to physical health, safety, or self-care, a guardian will need to be appointed by the Probate and Family Court to make decisions related to her “person.”

A guardian is a fiduciary and one that acts for an individual who is unable to manage his or her own affairs or make his or her own decisions. Guardians manage the custody and physical well-being of an incapacitated person. A guardian’s only financial powers relate to receiving the incapacitated person’s income to be used to pay for that person’s needs. A guardian’s powers include making decisions related to an incapacitated person’s support, care, education, health and welfare.

The Court must give weight to any nominations made by the incapacitated individual, either previously expressed or found in estate planning documents such as their durable power of attorney, health care proxy, or will. Here, Juliet is without an estate plan. Instead of deferring to Juliet’s preference of guardian – since there are no documents in existence stating her preference – the Court will appoint a proposed guardian. Under the applicable statute, any “qualified person” may be appointed as guardian of an incapacitated person.

Juliet’s children, Kate and Charlie, are likely best-suited to determine who in their mother’s life is a suitable and appropriate guardian. Kate and Charlie would have standing to file the Petition for Appointment of Guardian, as they are “interested in the welfare of the person alleged to be incapacitated.” If for any reason they chose not to pursue guardianship, any other interested party, including the hospital or nursing facility where Juliet is receiving treatment, may petition the court.

Because a guardian will be unable to make any decisions related to Juliet’s finances or her estate plan, a conservator likely will also need to be appointed. A conservator is a fiduciary appointed to manage the property of a minor or an adult who, because of disability, cannot manage his or her own property. A conservator will be appointed for an adult who is unable to manage property and business affairs effectively or has property that will be wasted or dissipated unless management is provided. A conservator’s powers are statutory and typically expansive.  There are, however, some limitations to these powers. For example, if a conservator needs to sell Juliet’s primary residence, any transactions related to her real estate would require prior court approval.

The Court will, again, defer to Juliet’s preference for her conservator. However, as we know, Juliet is without an estate plan expressing her preference and therefore the Court will appoint a person deemed appropriate by the Court. The Court will generally appoint a person if that appointment is in the best interest of the respondent, Juliet.

Petitioning for a conservator is a separate action, even if all of the parties are the same in both the guardianship and conservatorship proceedings. Kate and Charlie, or any other interested party, will need to pursue the appointment by filing a separate Petition for Appointment of Conservator. Kate and Charlie will again need to determine if they themselves should serve as their mother’s conservator or if there is a more appropriate individual, such as Attorney Hume – keeping in mind any potential conflicts of interest.   

Both guardianship and conservatorship proceedings will require that Kate and Charlie provide either a medical certificate, medical affidavit, or clinical team report illustrating Juliet’s alleged disability. In addition, Juliet’s conservator will have various reporting requirements due to the Court both initially and each year. The conservator must prepare and file an inventory of the estate within 90 days after appointment, listing all of Juliet’s real and personal property. The conservator will also need to account to the Court annually, detailing Juliet’s income and expenses for that year.

Kate and Charlie may wish to serve as joint conservators and/or joint guardians for their mother. They will be able to delegate administrative duties but will be required to make substantive decisions together. Kate and Charlie will need to ascertain their mother’s needs, both medically and financially, and determine whether or not they are up for the challenge.

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