Guardianship/Conservatorship,Revocable Living Trust, Durable Power of Attorney, and Special Needs Trust.
Lifetime planning is a procedure used to select the person who will care for an incapacitated adult. There are certain standards that are used to determine the incapacity of an adult, and can vary from state to state. The most common criteria include; mental illness, incompetence due to various causes including advanced age, physical illness or disability, chronic intoxication, etc.
A guardian or conservator, is someone who has been appointed by a probate court after a hearing, to manage the adult's personal care, and property, when that person is unable to provide for their own personal needs or manage their financial affairs.
What is a guardian or conservator?
This type of arrangement is known as a fiduciary arrangement. The term "fiduciary" derives its meaning from Latin "fidere"; to trust. A person is called a fiduciary guardian, because they are placed in charge of guarding and protecting the property of someone incapable of managing their own affairs. In general terms, a conservator carries the same meaning and responsib- ilities. A conservator is used by approximately one-third of all states. Depending on the particular state, this arrangement can be called a guardianship or a conservatorship.
Who can become a guardian/conservator?
Generally, any interested person, usually a family member or close friend can bring about an action to declare incompentence.
What are the parties involved in a guardianship or conservatorship?
The first being the ward, is the person determined by a state court to need protection in either personal or financial matters, as a result of an action brought by a person. A ward can also be known as "the incapacitated person", or "protected person", or "conservatee".
The second party is the guardian or conservator, who has been appointed by the court to act under the state's authority to protect the ward, and acts in a fiduciary capacity.
The third and final party in this arrangement is the state, who governs the court ordered arrangements.
What happens when a guardianship or conservatorship is established?
First, the guardian or conservator is appointed, which happens after a hearing, or a series of hearings. Once this arrangement is in place, the ward's basic civil and property rights are revoked and granted to the guardian or conservator. For example, some of their duties would involve paying monthly bills, real estate taxes, preparing tax returns, coordinating their living arrangements such as a nursing home, or assisted living.
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