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What to expect when the legal process begins

Updated on February 5, 2015

What does this affect my life?

Lets first look at what happens in a Guardianship and then discuss ways to help the individual falling into that process. Remembering that a Conservatorship is primarily the equivalent of Guardianship of Estate. There are legalities at play here that one would not even consider when thinking of the application to a child. When applied to an adult however, this is an entirely different matter.

In both of these legal instruments (Guardianship of Estate and Conservatorship) the ability to spend our own money for what we want is taken away from us, presumably for the protection of our financial means. What this means is we are barred from entering in to any contracts no matter how small or how large. This includes verbal contracts. (Have you ever gone through a drive thru at a fast food restaurant and paid by credit or debit card. At the bottom of the receipt it says I agree to pay>>>. This is a contract. Or have you ask the kid next door to mow the lawn. This is a verbal contract. What about your drive license – yes this is a contract with the state you live in. So why use one of these instruments for an individual who has no fluid economic worth? The idea is to place a gatekeeper in the line of distribution to protect the state. And for those individuals who do have financial means, the same may apply.

Either legal instrument is meant to give the power of discovery and redemption to the holder of the instrument. This allows for the least expensive way to make sure no money is hidden or given to family /friends who should be paid back to the state for care expense. This includes the legal ability to sell property, cash in stocks and bonds, IRAs, 401K and so forth. Also giving the power to search for any income that has not been properly provided, to the person, through a legal instrument has been issued for this purpose. This means looking for Veteran’s benefits, Railroad benefits, old insurance policies and much more.

The process of putting a guardian or conservator in place is not cheap nor is it of short duration. Generally speaking the process will involve a discovery period through the courts, which is expensive and will cost money of the person or state for at least four professionals and in some cases many more. The minimal players are a Lawyer, a Guardian Ad Litem, Guardian, and Medical Doctor.

A clear route around this expense is to ask for a family member or designated individual to be the guardian should the need arise; you can do this in a Medical Power of Attorney. The Medical Power of Attorney and a person responsible for the execution of the Last Will and Testament cannot be changed once a guardianship or conservatorship discovery has begun. While anything is possible in most cases it will require a trial to change either of these documents.

One thing is straightforward a guardianship or conservatorship is expensive for our estate. What about our person? Conservatorship is of finances only. When a guardianship of person is sought most of the time there is a concern for the wellbeing of the person. Perhaps they are living in an unsafe situation or are unable to access family or friends for help. Many times this legal step is put in place to prevent physical harm of the person either self-harm or by a predatory situation or person.

A guardianship of person works just as you might think with respect to the individual. The ability to make decisions for themselves is taken away and given to another person. This can be the last straw for some families and especially for the person. The only rights retained by the person are those medical decisions concerning last medical decisions or what has been set for in their Will, presumably established well before a question of competence is raised. A Guardian may use any means suitable to gather funds to pay for the medical and personal interest of the person. If that means selling the house to pay for institutional living, they only need the courts approval. The court has a primary responsibility to seek the necessary help for the person and do not have any legal responsibilities to the family of this person. So if the family home needs to be sold to pay for the care necessary the court will allow it (again there is a process, which does cost considerable money). If the person has artwork, jewelry, real property, income property or anything of value - it becomes the financial pool for the guardian to use to pay for the best interest of the person. And every act of selling, investigation of possible assets will require an expenditure of funds through due process of the legal system.

Next we will talk about the good side of these two legal tools. They are very valuable and can save lives when used appropriately.


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