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Guardianships and Conservatorships
A guardian is someone who has the legal authority to care for another, and a conservator is someone who manages another’s financial affairs.
In order for a guardian and/or conservator to be appointed, an adult person must be deemed to be “incapacitated”, thereby meaning that he/she lacks sufficient understanding or capacity to make or communicate responsible decisions concerning oneself or finances.
The Probate court appoints guardians and conservators for these persons who, due to physical or mental disabilities, need assistance in making decisions about their daily lives.
- The need for a guardian and/or conservator is identified by a family member, friend, member of the community, etc.
- A Petition is prepared, identifying the need, and naming a proposed guardian/conservator, with the person identified as need a guardian being named as the proposed ward. This Petition is filed with the Clerk of Court.
- The filing party contacts Probate Court Administration to set a hearing (typically set approximately 4-6 weeks out). If an emergency exists, a hearing can sometimes be set sooner, but that is determined by the assigned Judge or Commissioner on a case-by-case basis.
- The filing party will need to contact the Office of Public Defense Services to have an attorney appointed to represent the proposed Ward. PLEASE NOTE: If an attorney has not been appointed, this may delay your proceedings.
- After getting the name of the attorney, the filing party will complete and file an “Order Appointing Attorney…”. This form will also ask for the name of the health professional appointed for the purposes of completing the “Health Professional’s Report” (This is often, but not always, the proposed ward’s primary care specialist or primary psychologist/psychiatrist. The court does not make this appointment, nor does the court provide a list of professionals who will complete this report).
- The filing party will provide written notice to all interested parties, which may include immediate family members and/or their respective attorneys, any persons who have made a demand for notice, as well as the proposed ward and his/her court-appointed attorney (obtained in the step above), and then file proof that notice was given.
- If the proposed guardian/conservator is not a licensed fiduciary, they will complete the court-approved training and file proof thereof.
- A Probate Court Investigator will meet and interview all identified interested parties, including the proposed guardian/conservator, the proposed ward, family members, physicians, social workers, case managers, etc. The Investigator may also address any questions any of these parties have about the guardianship/conservatorship process.
- The Probate Court Investigator will prepare and submit a report to the court with all relevant observations, as well as a recommendation to the court as to the appropriateness of the guardianship/conservatorship and the appropriateness of the nominated guardian/conservator to serve in that capacity.
- MINOR CONSERVATORSHIP CASES ONLY: If the proposed Conservator is not blood-related to the minor, they may be ordered to furnish a set of fingerprints to Probate Court Administration for the purposes of submitting to the Department of Public Safety for a criminal background screening.
- The filing party and/or the nominated guardian/conservator should prepare their “Order to Guardian” or “Order to Conservator” or “Order to Guardian and Conservator”, as well as their “Order of Appointment” (Guardian / Conservator / Guardian & Conservator) in advance of the hearing.
- The Judge or Commissioner will review all filed and submitted documents, including the Petition, Physician’s Report, and Investigator’s Report.
- Testimony may be taken from interested parties, and evidence may be presented.
- The Judge or Commissioner may enter an order that same day appointing a guardian/conservator, either on an emergency, temporary, or permanent basis, but may also opt to continue the hearing, or issue a ruling on a later day. The Judge or Commissioner may also choose to dismiss the case if the evidence does not support that a need exists.
- The guardian/conservator will take the signed copies of their “Order to…” and “Order of Appointment”, along with their “Letters of Appointment” (Guardian / Conservator / Guardian & Conservator) to the Clerk of Court to have them issued. In issuing the Letters, the Clerk of Court certifies that they are valid and true, giving the Guardian/Conservator the authority to take the actions necessary to provide care for the ward. NOTE: Letters of Appointment are not valid until issued by the Clerk of Court. In some cases, the Guardian/Conservator may be ordered to obtain a bond, and no Letters will be issued until a Proof of Posting Bond has been filed.
- If not already done so earlier, the Guardian/Conservator should file their proof of completion of the court-approved training.
- Other documents may also need to be filed, as per the Judge’s/Commissioner’s orders, depending on the nature of the case.
- If a guardian is appointed:
- The guardian will be ordered to file an annual Report of Guardian, informing the court about the ward’s status, which must include a recent report from the ward’s physician/nurse practitioner.
- The guardian and ward may be subject to a periodic visit by a Court Visitor or Court Investigator, primarily as a well-check to inquire about the status of the ward and guardian alike.
- If a conservator is appointed:
- The conservator may be ordered to file regular accountings, detailing the ward’s income and expenses over a specific time period.
- All active guardianship/conservatorship cases are reviewed regularly to determine compliance with required filings, as well as the completeness and accuracy of said filings.
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