For some, legal protection may be necessary even after they have entered adulthood. It could be an injury, medical condition or mental illness that prevents them from caring for themselves or managing their finances or property.

The law allows for someone to be named guardian or conservator for the individual needing help.

In the legal process, they are referred to as an “incapacitated adult” and “proposed ward.”

The court can provide help when a person becomes unable to make routine decisions, such as how and where they live, who cares for them, what kind of medical treatment they receive or how their finances are managed.

There is a difference between a guardianship and a conservatorship.

A guardianship is established when a person lacks the necessary capacity to make or communicate significant responsible decisions concerning his or her health or safety.

A conservatorship is put in place when a person lacks sufficient capacity to make or communicate significant responsible decisions concerning the management of his or her finances or property.

A guardian or conservator is typically a family member, friend or trustee appointed by the court.

The process to become a guardian or conservator starts with a family member, person responsible for the individual’s care or a facility such as a nursing home filing a petition requesting the court appoint a guardian/conservator.

The petition will include information such as the mental or physical condition of the proposed ward, how they are currently being cared for and the reasons for filing the petition.

There will be a hearing before a judge. To safeguard the incapacitated adult’s right to due process, they are entitled to notice of all legal proceedings and can attend the proceedings. In addition, the incapacitated adult may obtain representation by an attorney, present evidence, and confront and cross-examine all witnesses.

A judge will make the final determination as to whether to have a guardian/conservator appointed.

Estate Planning and Administration