Legal
Guardian or conservatorship
If a person becomes unable to manage their personal or business affairs due to illness or accident, and has not implemented a less restrictive measure, a court may have to appoint a guardian or conservator . A guardian may be appointed by a judge when a person lacks the capacity to make personal and/or property decisions, and may be at risk of harm without protection. The authority granted to a guardian may cover virtually all aspects of a person's life, or it may pertain only to certain aspects. Conservatorship involves the appointment of a person to manage only the financial resources of another person.
In general, less restrictive measures such as durable powers of attorney are preferred to guardianship. Guardianships are expensive, emotionally difficult, and take time. The monetary costs for establishing a guardianship ranges from $3,000 to $5,000 depending on specific circumstances. Furthermore, guardianship takes away important legal and civil rights, including the right to vote, marry, decide where to live, make gifts or make health care decisions. It is possible to terminate a guardianship and restore an incapacitated person's rights if he or she regains capacity. Restoration is rare, however, because it is difficult for a person under guardianship to retain a lawyer and/or prove capacity. Probate courts estimate that the vast majority of guardianships could be avoided by the use of durable powers of attorney. However, in cases where there is potential for abuse under a durable power of attorney (e.g., a person does not have someone they trust to appoint to act on their behalf), a guardianship or conservatorship may be more appropriate. Also, under guardianship, there is accountability to the court.
Updated: November 2, 2007
