Guardianship and conservatorship — when the court gets involved

This article is for educational purposes only and does not constitute medical, legal, or financial advice. Every family situation is different, and you should consult with appropriate professionals about your specific circumstances.

Your father has dementia. He can't manage his affairs. Your mother died five years ago. There's no power of attorney in place because your father refused to sign one years ago. He didn't want to think about aging. Now he can't make decisions and can't consent to someone making decisions for him. Your only option is to go to court and petition for guardianship. The process will be public. Your father's finances will be scrutinized by the court. You'll have ongoing court reporting requirements. This is what happens when someone loses capacity and there's no power of attorney in place.

Guardianship and conservatorship are court-appointed relationships where someone gets authority to make decisions for someone who can't make their own decisions. These are the backup option when there's no power of attorney in place. They're how the court system handles situations where someone loses capacity and there's no existing document giving someone authority.

Guardianship and conservatorship are not what families want. They're expensive, public, and involve ongoing court oversight. But when there's no power of attorney in place, they're often the only way to get legal authority to make decisions for someone who's lost capacity. Understanding what they are and how they differ helps you understand the consequences of not having power of attorney documents in place.

Understanding the Basics

Guardianship and conservatorship are both court-appointed relationships, but they address different things. Guardianship is about personal decisions. A guardian makes decisions about where someone lives, what medical treatment they receive, what day-to-day personal care looks like. Conservatorship is about financial decisions. A conservator manages someone's money and property. Some jurisdictions use different terminology. Some states use "conservatorship" for both personal and financial authority. Some use "guardianship" for both. The specific terms vary, but the concepts are similar.

To establish guardianship or conservatorship, someone (usually a family member) petitions the court. The petition says that the person cannot manage their own affairs and requests that the court appoint someone to do so. The person alleged to be incapacitated gets notice of the petition. They have the right to respond and the right to contest it. There's a court hearing where evidence is presented about whether the person has capacity.

The court appoints a guardian or conservator if the evidence supports it. The guardian or conservator has legal authority to make decisions for the person. Unlike a power of attorney, which is something one person gives voluntarily to another, guardianship is something the court imposes.

The guardian or conservator then reports to the court. They have to account for their actions. If it's a conservator managing money, they might have to file financial reports with the court showing what was spent and why. The court supervises the guardian or conservator to ensure they're acting appropriately.

Guardianship and conservatorship are not temporary. They continue as long as the person lacks capacity. If the person regains capacity, they can petition the court to remove the guardian or conservator. But that requires proving that capacity has returned, which is difficult. Most guardianships and conservatorships continue until the person dies.

Key Differences from Power of Attorney

A power of attorney is voluntary. The person with capacity chooses to give authority to someone else. A guardian or conservator is court-appointed. The person has not chosen this arrangement.

A power of attorney can take effect immediately. If you sign a power of attorney today, the person named can start acting immediately. A guardianship or conservatorship requires a court process. It takes weeks or months to get established.

A power of attorney gives the authority to someone you choose. Guardianship or conservatorship gives the court authority to appoint someone, though usually the court will appoint whoever petitioned if that person seems appropriate.

A power of attorney is private. The person with power of attorney doesn't have to report to anyone. A guardianship or conservatorship requires ongoing court reporting and court oversight.

A power of attorney can be ended by the person who created it if they still have capacity. A guardianship or conservatorship has to be challenged in court to be ended.

This is why power of attorney is so much preferable. It lets your parent choose who will make decisions if they can't. It avoids court involvement. It avoids public record. It avoids ongoing oversight. If your parent has capacity now and signs a power of attorney, they're choosing this path. If your parent loses capacity and there's no power of attorney, guardianship or conservatorship is the default.

Your Parent's Specific Situation

If your parent still has capacity, the focus should be getting power of attorney documents signed. This is the best way to ensure your parent's wishes are followed and to avoid needing guardianship or conservatorship later.

If your parent has already lost capacity and there's no power of attorney, guardianship or conservatorship might be necessary. An attorney can advise on whether it's truly necessary or whether there are alternatives.

In some cases, there are alternatives to full guardianship. Limited guardianship gives someone authority over only specific decisions. Maybe your parent can still make some decisions but can't manage finances. A limited guardianship for finances only might make sense. Limited guardianship keeps more authority with your parent while getting court-appointed someone to handle specific things.

Some states have conservatorship without guardianship options. Your parent might need someone to manage finances but not need someone managing personal decisions. The court can appoint just a conservator.

Some states have emergency guardianship options. If something urgent needs to happen and there's no time for full guardianship, an emergency guardianship can be established quickly. The emergency guardianship is temporary and buys time while the full guardianship process proceeds.

Taking Next Steps

If your parent still has capacity, the priority is getting power of attorney documents signed. An attorney can prepare them. Your parent reviews them and signs them. This avoids any possibility of needing guardianship or conservatorship later.

If your parent has already lost capacity and needs to make decisions, contact an attorney immediately. The attorney can assess whether guardianship or conservatorship is necessary and what your options are.

If guardianship or conservatorship is necessary, the attorney will help you petition the court. The process varies by state, but involves filing paperwork with the court, providing evidence of incapacity, and having a hearing. An attorney is essential for this process.

Be aware of the costs. Guardianship or conservatorship requires attorney fees, court fees, and possibly evaluator fees. These costs are paid from your parent's estate. Be prepared for those costs. They're often less than the costs that would have been incurred if proper planning had been done earlier, but they're still significant.

Once appointed, understand your responsibilities. A guardian or conservator is responsible for acting in your parent's best interest. You have to keep records. You might have to file reports with the court. You have to manage your parent's affairs properly. This is serious responsibility. If you're appointed and not fulfilling your responsibilities, the court can remove you and possibly pursue other consequences.

This is one of those situations where prevention is better than cure. Getting power of attorney documents in place while your parent can sign them is infinitely better than waiting until your parent loses capacity and having to go through guardianship or conservatorship. But if you're already in the situation where your parent has lost capacity and there's no power of attorney, guardianship or conservatorship might be your only option. Working with an attorney to handle it properly is important.

How To Help Your Elders is an educational resource. We do not provide medical, legal, or financial advice. The information in this article is general in nature and may not apply to your specific situation. If you are concerned about a loved one's cognitive health or safety, consult with their healthcare provider or contact your local Area Agency on Aging for guidance and support.