Senior citizens face increasing physical and mental impairments as the population of that age group grows.  Careful planning can protect a Senior's estate assets against dissipation.  Seniors can use revocable living trusts and powers of attorney to manage their assets. However, many Seniors fail to make such plans, or the plans prove to be insufficient. As a result, court-imposed decision-making, such as a Guardianship or Conservatorship, may be necessary.

When an individual becomes incapacitated and can no longer manage his or her affairs or take care of himself or herself, family members or other concerned individuals may ask the Court to protect the incapacitated individual by appointing a Conservator or Guardian.  A similar proceeding for developmentally disabled or mentally ill individuals allows parents or family members to ask the Court for the appointment of a Guardian of the disabled person.  In cases in which a minor is to receive a gift, inheritance, personal injury award, etc., it may be necessary that his or her parents (or other responsible adult) be appointed by the Court as Guardian of the minor's estate. In situations where a minor's parents die or their parental rights are terminated, the Court may appoint a Guardian of the minor.

Ordinarily, these Conservatorship and Guardianship proceedings are uneventful and uncontested.  However, in some cases, disputes arise among family members or other interested persons.

Contested Conservatorship and Guardianship cases may involve: challenging the appointment of a sibling or other person as unfit; challenging the incapacitation of an individual; limiting the scope of the authority of a Conservator or Guardian; and seeking to have a Guardianship or Conservatorship revoked because of financial abuse, emotional abuse or failure to care for the ward.

Guardianship and Conservatorship proceedings require a formal complaint to be filed with the Court and may require subpoenas, depositions and a trial.  Additionally, certifications from two medical doctors or psychologists are required and the Court will appoint counsel for the alleged incapacitated individual.

 

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