If someone loses the ability to make an “informed consent”, or the ability to physically participate in activities of daily living (ADLs) they need to seek formal assistance. It often becomes clear that care providers, a family member, friend or agency needs to become a guardian and/or conservator for them. Without much understanding of the responsibilities of these positions, it can be overwhelming for family and friends to handle the day-to-day needs of those they care about. This is where Siporin & Associates, Inc (SAI) traditionally becomes involved.
What is a guardian?
A guardian protects the person. In essence, they are asked to make sound decisions for those who are incapacitated. For example, issues that require attention include ensuring quality food, proper medical attention, housing and attending to legal issues.
What is a conservator?
A conservator protects the estate. When someone’s net worth is over $21,000, involves litigation, operation of a business or includes property, conservatorship should be considered. Conservators gather all assets of the estate. They make decisions about investments and how to best handle and minimize expenses.
Can one person be the guardian and conservator?
Can more than 1 person be the guardian and the conservator?
Yes, in both cases. There can be up to 2 people as guardian and 2 people as the conservator.
How do I petition for guardianship?
The probate court is a resource for families who seek legal assistance. It was established to handle cases involving incapacitated individuals. In general, a guardian is appointed after a court appointed lawyer called the guardian ad litem (GAL) reviews the case. If no attorney is involved, an interested party can go directly to the Probate Court and file a petition. Interested individuals must be related to the injured party by blood relationships, marriage, friendship, or be a professional care provider to that individual. The petitioner is then asked to complete a form covering basic information regarding the injured party, the family and the estate. To file for guardianship, one must also attach a doctor’s report supporting the individual’s need for a guardian. This serves as protection for the injured party.
Can facilities petition for guardianship of injured individuals?
Facilities that house injured individuals can petition to have a guardian or conservator appointed just like anyone else. However, under the current probate code, a facility cannot become the guardian or conservator due to a potential conflict of interest.
What happens when lawsuits are involved?
When there is litigation involved, it is best to consult the injured party’s attorney for advice. Attorneys will help file the probate petition under such circumstances.
What if the injured party is under 18 years old?
When no parent is able or deemed suitable to care for their child, the process follows the same course as adult guardianship. The only difference is the form used for the petition. On their 18th birthday, guardianship ends. If the incapacity continues, an adult petition must then be filed with the court.
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