Without a revocable trust or power of attorney, a formal court protective proceeding is required to authorize a family member or friend to provide care or manage finances for an incapacitated adult. In the case of a minor child, a protective proceeding is necessary if the parent(s) died intestate or without an operative guardianship provision or testamentary trust in the will(s).
When a loved one becomes incapacitated, a court may consider guardianship as the last resort, and only as necessary to promote and protect the well-being of the protected person. A guardian is responsible for the well being of the protected person, making decisions such as selecting from a myriad of housing options, managing health care and medical decision-making, coordinating personal care to ensure comfort and safety.
Prior to initiating a guardianship proceeding, family members and friends need to evaluate any available alternatives to guardianship.This is because a guardianship is a significant intrusion into an individual’s basic fundamental rights. The process requires a loved one to file a petition with the court and allow for the proposed protected person to object. A court-appointed party is required to visit with the proposed protected person to evaluate the need for a guardianship, and provide an independent report to the court. Due to such scrutiny, and the nature of a public legal process, guardianship results in the loss of the protected person’s right to privacy.
When a loved one is unable to manage his or her financial affairs, and does not have a power of attorney or revocable trust in place, a court may consider appointing a conservator to assume financial management responsibilities. As with guardianship, initiating a conservatorship proceeding results in a loss of privacy. The petition requires detailed information and examples of why the proposed protected person is unable to manage his or her financial affairs as well as description of the assets requiring financial management.
While a family member generally serves as guardian and/or conservator, professionals are available to serve in these roles if no relative is suitable, available, or willing to assume the responsibility. Each court proceeding is a lengthy and expensive process, and requires significant administration activity, which is financially burdensome for most families.
The proposed protected party is given significant notice and opportunity to object to either proceeding, which could lead to additional legal fees for both sides. Costs include filing and court visitor fees, bond premiums, fees for legal and accounting professional services, as well as fees for the petitioner. The costs are ongoing due to the court supervision, including annual accountings, required for the duration of the guardianship or conservatorship.
Catalyst recognizes the emotional toll of any protective proceeding, and use our best efforts to achieve our clients’ goals given advocate for our clients while recognizing the emotional, financial and desire for privacy challenges that can occur in these proceedings.
Schedule a Complimentary 15-Minute Case Evaluation to learn more about legal representation to initiate or object to a protective proceeding, whether a guardianship, conservatorship, or both.