Conservatorships & Guardianships

Each of us as we age may encounter a situation in which we become incapacitated and/or disabled such that we are no longer able to formulate appropriate decisions as to our personal and financial needs. In many cases, a party at an early age may experience an illness and/or injury which would render Him/her incapacitated on a permanent or limited basis. More typically, as parties age and encounter a need for placement in an assisted living and/or other healthcare facility, the party may become physically and/or mentally incapacitated such that the needs must be addressed on a long-term basis. Family members have a myriad of questions relative thereto. How do we access Mom's estate to pay her bills? How do we process income Dad receives on a monthly basis? How we do admit Mom into a nursing home or secure healthcare services? In many cases, a party may have a Durable Power of Attorney which will permit same to be addressed. However, in a great percentage of cases, the use of a conservatorship is the logical and preferred alternative.

Members of this firm typically meet with the family members for the purpose of confirming their commitment to the conservatorship and securing their preference as to the family member to serve as the fiduciary. We recognize the importance in making the family comfortable with the process. The filing of the petition with the Court will be accompanied by the filing of an affidavit from the respondent's primary treating physician detailing the character of his/her illness and/or incapacity and confirming the need for a conservatorship. Further, the Court will typically appointed a guardian ad litem, in most cases an attorney, who will independently investigate the respondent's situation, meet with family members, discuss the needs with doctors, and perform such other work as will allow an independent recommendation to be made to the Court.

Presuming there is a concurrence in the need, a fiduciary is appointed to represent the person and/or the property of the respondent. The functions of the fiduciary are clearly defined by the Court, and financial responsibilities are monitored on an annual and/or periodic basis thereafter.

In a typical scenario, this office will encounter clients who have a minor child who may be the beneficiary of an estate, the beneficiary of insurance proceeds from a deceased party, or the beneficiary proceeds from damage cases. If same are in excess of a statutory threshold amount, it is necessary that a guardianship established if there is a need to access those funds for the support needs of the minor child and/or a need to more adequately manage same. In most cases, a parent and/or other responsible family member is appointed guardian of the minor child's person and/or property. As to those cases in which funds are available for distribution to the minor child, the guardian will be permitted access to the funds for the purpose of managing and maintaining same under statutory guidelines, and additionally, can be permitted to utilize certain of the corpus and income for the support, maintenance, education and healthcare needs of the minor until he/she attains his/her majority. The statutes insure the management of the funds by the requirement that the fiduciary post a bond, with accountings to the Court on an annual and/or other periodic basis.