Guardianship/Conservatorship for Adults
When an adult becomes unable to make responsible decisions, then that adult may be in need of a guardian, conservator, or other alternative.
The law states that a guardian may be appointed if a court determines that a person is an incapacitated individual. The law defines an incapacitated individual as:
ďÖone who is impaired by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, or other cause, not including minority, to the extent of lacking sufficient understanding or capacity to make or communicate informed decisions.Ē
A conservator may also be appointed if the person is unable to manage his or her property or finances effectively.
A petitioner would file a guardianship petition in either the county where the adult resides (i.e., where they live) or is present.†
would file a conservatorship petition in the county where the adult resides
(i.e., where they live).† If the adult
resides outside of
Generally it can be said that the guardian makes decisions about the person, such as medical or housing decisions, and the conservator makes decisions about the property or the finances of the person. A guardian and a conservator can be the same person or institution or they may be different. For example, a guardian could be a person and a conservator could be a trust company or bank.
A guardian or conservator may be appointed by a Probate Judge after a petition is filed in the Probate Court. The petition may be filed by anyone interested in the well being of the adult.
When the petition is filed, a hearing will be scheduled. In addition, the court may appoint a guardian ad litem to investigate the situation and make a recommendation to the court prior to the hearing.
On the date of the hearing, the petitioner and anyone else who wants to take part in the hearing goes before the Judge and explains the need for a guardian or conservator. The Judge will decide whether to appoint a guardian and/or a conservator.
The person who is appointed guardian is required to file an Acceptance of Appointment. The person who is appointed conservator must also file an Acceptance of Appointment and may also be required to file a Bond to protect the adultís assets. After filing the Acceptance of Appointment (and Bond, if required), Letters of Authority will be issued to the guardian or conservator. The Letters of Authority give the guardian or conservator the right to perform certain duties, unless the court restricts their authority.
If an emergency exists, the Judge may appoint a temporary guardian at a hearing. A letter from a doctor or social worker may be required to explain the nature of the emergency. Please note that a second hearing is required.
†The court will also review a guardianship within a year of the guardian being appointed and at least once every three years afterwards.
What are the duties of a conservator?
††The account must list receipts (monies in) and disbursements (monies out). Save your receipts; one must be presented to the court for each disbursement.
Anyone, including the adult, may file a petition to terminate the guardianship or conservatorship or to have a different guardian or conservator appointed. With the courtís permission, the guardian may resign at any time. When the adult is no longer an incapacitated individual or dies, the court should be notified immediately so that the guardianship or conservatorship can be ended and the courtís case closed. Before the conservator can be discharged, a Final Account will have to be filed and approved by the court and the court will have to be satisfied that the adult or his or her estate has received whatever assets remain.
If you have any
questions about what services or procedures may be available that might make
guardianship or conservatorship unnecessary, you may call the Commission on
Aging, Department of
If you have questions that this pamphlet did not answer, please seek legal advice from an attorney. By law, court employees are not permitted to give legal advice.
The courtís hours are 8:00 a.m. to 12:30 p.m. and 1:30 p.m. to 4:30 p.m., excluding weekends and holidays. Early morning is the best time to come to the court. Plan on coming no later than mid-afternoon.
They can be obtained in person or by mailing a request to:
Attn: Probate Counter
1307 Coleman A. Young Municipal Center
If the request is mailed in, the court will send you a bill.