Guardianships & Conservatorships
A Guardianship is sought for a person who is incapacitated due to a medical condition or developmental disorder. If a person is unable to govern themselves or their financial affairs then that person is deemed incapacitated under the law. The Court will appoint a guardian to manage the care and finances of the incapacitated individual. Parents of children with developmental disorders must often apply for a guardianship when their child turns eighteen years old to legally manage their child’s finances and medical care. Adult children of an elderly parent suffering from advance Alzheimer’s disease, dementia or severe cognitive loss must apply for a guardianship in order to make medical and financial decisions on their parent’s behalf. The powers granted to a guardian usually include all the powers an individual could exercise for himself if they could. This includes opening bank accounts, selling property, receiving funds, spending funds, making medical decisions and providing for the person’s general care. Being a guardian carries with it fiduciary duties. This means that all actions taken on behalf of the incapacitated individual must be for that person’s benefit.
Conservatorships are different in that the Court does not rule on a person’s mental capacity. The individual must grant his or her consent to have a conservator appointed. The powers granted only concern the individual’s property and finances, not health care decisions.
The legal process itself is relatively short. Once the papers for guardianship are filed, the case is usually resolved within thirty days. The attorney for the proposed guardian files the necessary pleadings and certifications with the Surrogate Court. The Court will appoint an attorney to represent the incapacitated person. The court-appointed attorney will interview the proposed guardian(s) and the incapacitated person. The court- appointed attorney will then issue a letter opinion to the Court stating whether, in his/her opinion, (1) the incapacitated requires a guardian and (2) whether the guardian is appropriate.
I am one of the several attorneys in Union County appointed by the Court to represent incapacitated persons when someone has filed for guardianship. As such, I have filed many reports with the Court giving my opinion as to whether a guardianship is warranted. During your initial consultation, I will review the guardianship process with you and the documentation required to be awarded guardianship.