Adult Guardianships and Conservatorships
By Sharon A. Burgess
This article provides an overview of guardianships and conservatorships for adults. There are also guardianships and conservatorships which are established for minors and individuals with developmental disabilities. There are important differences between these types of guardianships and conservatorships. Unfortunately, they will not be addressed in this article. The purpose of this article is to provide information and a general understanding of how guardians and conservators for adults are appointed.
A guardian is a person appointed by the probate court authorized to make decisions about the care, custody and general welfare of another person. A petition must be filed with the probate court alleging a need for the appointment of a guardian. The alleged legally incapacitated individual is required to be given notice of the proceeding and a guardian ad litem (usually an lawyer) will be appointed to review the petition, to meet with the alleged legally incapacitated individual, and make a recommendation to the court regarding whether the appointment of a guardian is appropriate.
There will be a probate court hearing and the court will appoint a guardian if it determines that a person is a legally incapacitated individual. A legally incapacitated individual is defined as an adult who is impaired by “mental illness or deficiency”, “physical illness or disability”, “chronic use of drugs or intoxication”, “or other cause, such that the individual lacks the understanding or capacity to make or communicate informed decisions”. If a guardian is appointed, the guardian is then required to file a report with the probate court at least annually regarding the status of the individual.
A conservator is a person appointed by the probate court who is authorized to manage the financial affairs of another person. Conservators are appointed utilizing a similar process as set forth above for guardians. There must be a need for the conservatorship, i.e., the person is unable to manage his property and financial affairs effectively due to an impairment as set forth above. The second part of the analysis is the “risk factor”, i.e., the person has property that will be wasted or dissipated unless it is properly managed, or, money is needed for the support, care and welfare of the individual or his dependents. A mentally competent adult may also petition the court for the appointment of a conservator to assist in managing his affairs. If a conservator is appointed, the conservator is required to file an inventory with the court of all the person’s assets, including the value. Thereafter, the conservator is required to file annual accountings including a detailed account of how the protected individual’s assets are being used.
Sharon A. Burgess and Danelle E. Harrington practice in the areas of probate/estate planning, long term care planning and elder law, and business and real estate transactions at SMITH BOVILL, P.C. Their articles are intended to introduce various issues arising within these fields of practice and are not intended to replace individual legal advice. If you have questions, please contact Sharon or Danelle at one of the firm’s two convenient office locations in Frankenmuth and Saginaw.