When may a guardian or
conservator be necessary for an adult?
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:
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.”
conservator may also be appointed if the person is unable to manage his or her
property or finances effectively.
In which county should I file to open a guardianship?
would file a guardianship petition in either the county where the adult resides
(i.e., where they live) or is present.
In which county should I file to open a conservatorship?
would file a conservatorship petition in the county where the adult resides
(i.e., where they live). If the adult
resides outside of
but has property in
the petitioner may file a conservatorship in the county where the adult’s
property is located.
is the difference between a guardian and a conservator?
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.
are guardians and conservators appointed?
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.
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 and explains the need for a guardian or
conservator. The Judge will decide whether to appoint a guardian and/or a
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.
a guardian be appointed immediately in an emergency?
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.
What are the duties of
- 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
- The guardian may make routine medical decisions
but may not consent to extraordinary medical procedures without a court
- A major goal of the guardian is always to try to
restore the ward to independence.
What are the
duties of a conservator?
- 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
- 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.
may a guardianship or conservatorship be terminated?
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
or Family Independence Agency.
I need an attorney?
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
much time should I plan on spending at the court to open a guardianship and\or
hours are 8:00 a.m. to 12:30 p.m. and 1:30 p.m. to 4:30 p.m., excluding
weekends and holidays. Early morning is the best time to come to the
court. Plan on coming no later than mid-afternoon.
do I get certified copies of court documents?
They can be
obtained in person or by mailing a request to:
Wayne County Probate
Attn: Probate Counter
1307 Coleman A. Young Municipal Center
request is mailed in, the court will send you a bill.