Guardianship/Conservatorship for Adults
- When may a guardian or conservator be necessary for an adult?
- In which county should I file to open a guardianship?
- In which county should I file to open a conservatorship?
- What is the difference between a guardian and a conservator?
- How are guardians and conservators appointed?
- Can a guardian be appointed immediately in an emergency?
- What are the duties of a guardian?
- What are the duties of a conservator?
- When may a guardianship or conservatorship be terminated?
- Are there alternatives?
- Do I need an attorney?
- How much time should I plan on spending at the court to open a guardianship and\or conservatorship?
- How do I get certified copies of court documents?
When an adult becomes unable to make responsible decisions, then that adult may be in need of a guardian, conservator, or other alternative.
The law states that a guardian may be appointed if a court determines that a person is an incapacitated individual. The law defines an incapacitated individual as:
“…one who is impaired by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, or other cause, not including minority, to the extent of lacking sufficient understanding or capacity to make or communicate informed decisions.”
A conservator may also be appointed if the person is unable to manage his or her property or finances effectively.
A petitioner would file a guardianship petition in either the county where the adult resides (i.e., where they live) or is present.
would file a conservatorship petition in the county where the adult resides
(i.e., where they live).
If the adult
resides outside of
Generally it can be said that the guardian makes decisions about the person, such as medical or housing decisions, and the conservator makes decisions about the property or the finances of the person. A guardian and a conservator can be the same person or institution or they may be different. For example, a guardian could be a person and a conservator could be a trust company or bank.
>A guardian or conservator may be appointed by a Probate Judge after a petition is filed in the Probate Court. The petition may be filed by anyone interested in the well being of the adult.
When the petition is filed, a hearing will be scheduled. In addition, the court may appoint a guardian ad litem to investigate the situation and make a recommendation to the court prior to the hearing.
On the date of the hearing, the petitioner and anyone else who wants to take part in the hearing goes before the Judge (all hearings are being done remotely via ZOOM due to the health emergency) and explains the need for a guardian or conservator. The Judge will decide whether to appoint a guardian and/or a conservator.
The person who is appointed guardian is required to file an Acceptance of Appointment. The person who is appointed conservator must also file an Acceptance of Appointment and may also be required to file a Bond to protect the adult’s assets. After filing the Acceptance of Appointment (and Bond, if required), Letters of Authority will be issued to the guardian or conservator. The Letters of Authority give the guardian or conservator the right to perform certain duties, unless the court restricts their authority.
If an emergency exists, the Judge may appoint a temporary guardian at a hearing. A letter from a doctor or social worker may be required to explain the nature of the emergency. Please note that a second hearing is required.
The guardian generally has the same authority and responsibility for the adult as a parent has for a minor child.
The guardian is required to file every year an Annual Report of Guardian on Condition of Incapacitated Individual. The report must be filed within 56 days of the anniversary date of the appointment. They must also give a copy of the report to the adult and the persons listed on the guardianship petition. The information contained in the report allows the court to assess how the guardianship is working and whether it is still necessary. The court will also review a guardianship within a year of the guardian being appointed and at least once every three years afterwards.
You must visit the ward within 3 months of becoming guardian and at least once every 3 months after your last visit.
The guardian may make routine medical decisions but may not consent to extraordinary medical procedures without a court order.
A major goal of the guardian is always to try to restore the ward to independence.
Within 56 days of being appointed, the conservator must file an Inventory. The Inventory is a listing of all assets of the adult. Assets may consist of real estate, stocks, bonds, certificates of deposit, savings and checking accounts, and personal belongings and everything in which the adult has an interest.
It is the duty of the conservator to care for and preserve all of the assets of the adult and to represent the adult in any legal proceeding.
The conservator must keep careful records of all income of the adult and all disbursements of the adult’s funds. The conservator must keep the adult’s assets separate from his or her own assets and never “borrow” from the adult’s assets.
It is the duty of the conservator to file an Annual Account each year within 56 days after the anniversary date of the conservator’s appointment. They must also give a copy of the account to the adult and the persons listed on the conservatorship petition.
The account must list receipts (monies in) and disbursements (monies out). Save your receipts; one must be presented to the court for each disbursement .
Anyone, including the adult, may file a petition to terminate the guardianship or conservatorship or to have a different guardian or conservator appointed. With the court’s permission, the guardian may resign at any time. When the adult is no longer an incapacitated individual or dies, the court should be notified immediately so that the guardianship or conservatorship can be ended and the court’s case closed. Before the conservator can be discharged, a Final Account will have to be filed and approved by the court and the court will have to be satisfied that the adult or his or her estate has received whatever assets remain.
If you have any
questions about what services or procedures may be available that might make
guardianship or conservatorship unnecessary, you may call the Commission on
Aging, Department of
If you have questions that this pamphlet did not answer, please seek legal advice from an attorney. By law, court employees are not permitted to give legal advice.
Due to the health emergency, the court is closed to the public. All items are filed via email (firstname.lastname@example.org), FAX (313-967-4030) or mail. See the court's homepage, www.wcpc.us, for additional details.