When relatives or others are unable to make decisions for themselves, usually due to medical reasons, loved ones may wish to take control over their affairs. One way to do this is by becoming their guardian. Guardianship entitles the agent to have access and control over every facet of a principal’s life, i.e., having custody of the principal and their property. Unlike a power of attorney, the principal has no control over decision-making, so a guardianship is usually awarded based on the fact that a principal is not competent enough to make their own decisions regarding themselves or their property.
In this case, the principal is called a “ward” and having a guardianship lessens their independence. As such, this is not a relationship that is granted easily nor taken lightly. It is a huge responsibility and is at a high risk for potential fraud and breach of fiduciary responsibility.
When actively pursuing guardianship, many steps need to be taken:
First, papers need to be filed at the local courthouse to request guardianship. (Please note: Unlike power of attorney, this is not a process that can be completed without legal forms being filed with the court. Hiring an attorney is recommended.)
Next, to help the court understand why guardianship is being requested, there is typically a hearing where a medical professional may testify about the competence of the ward. Establishing a case for guardianship by proving incapacitation of the person is typically required.
Third, the person who asks for the guardianship—the petitioner—generally bears the responsibility for paying any fees associated with the process. If guardianship is established, these can be assessed against the estate of the person over whom guardianship is sought.
Finally, the court then decides whether to grant a full guardianship or a conservatorship. A conservatorship usually means that the person gains control of the ward’s property or their person only—not both. Because guardianship means complete control over someone else’s life, this is not a matter the court takes lightly. If they can grant only conservatorship, they generally prefer to do so.
Conservatorship is much like guardianship, except that a conservator only has control over certain parts of the ward’s life, rather than total control. A conservator is generally only making decisions about the ward’s money and property; not over other personal decisions. An example is that a conservatorship may decide whether to sell the ward’s stock, but not what diet they choose or the social activities in which they can engage. A guardian makes all decisions, while a conservator only makes those that apply to the areas in which they were appointed. The process for applying for conservatorship is the same or similar to that of guardianship in most states.