Conservatorships & Guardianships
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| America continues to age and with age comes increased incapacity of seasoned citizens to handle their affairs. In those situations where proper planning has not occurred by creating powers of attorney, the court has to step in to protect and administer affairs of the person suffering incapacity.
A Conservatorship is a legal process through the Chancery Court in the county of ward’s residence that decides if the ward has legal capacity to handle his/her affairs. The ward is the person whose capacity is questioned.
If a person is adjudged to lack legal capacity, then a Conservatorship is granted. The "ward" loses control of his/her property and right to handle his/her financial matters and could lose the right to make healthcare decision.
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The process is started by a family member or friend files a Petition
alleging the person lack capacity. Two doctors (or a doctor and a
psychiatrist) must file a certification in their opinion the person
lacks capacity. The court sets a date for a hearing, process is served
on the ward and another adult family member and at the hearing presents
evidence to the judge showing the wards lack of capacity to handle
his/her affairs. The court decides whether a conservator will be
appointed and if so who that will be.
A Conservatorship protects
the interest of the ward’s property by requiring the conservator to
make an annual accounting to the court at the expense of the ward’s
estate. The Conservatorship continues until the ward improves or dies
and must be terminated by Order of the court. In some situations, the
expense and difficulty of a Conservatorship may be eliminated by
execution of powers of attorney.
A Conservatorship and
Guardianship are somewhat similar and follow some of the same statutes.
Generally a Conservatorship is for an older person to conserve the
estate. A Guardianship is generally for younger people, usually minors
or disabled persons, and guards the assets of the ward.
In the
case of Conservatorship, The Elder Law Firm uses it as a last resort to
protect assets. The preference is always to work with honest family
members who are looking out for the best interest of the ward.
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