Conservatorships can be delegated as responsibility for the individual, their property, or both. For this reason, an individual can be appointed more than one conservator. Both guardianships and stewardships are important terms to know and important for proper estate planning. When organizing a will or trust at any age, it is necessary to consider your stewardships and determine into whose hands they should fall in the event of death.
If a proper estate plan is not in place and such things are not detailed, those decisions will be made by the court, an uninvolved party. If you have any questions with regards to guardianship, conservatorship, or estate planning for a more secure future, contact Morris Hall.
We would be happy to assist you. Your email address will not be published. Save my name, email, and website in this browser for the next time I comment. Our law firm has offices in Arizona and New Mexico. See all of our locations here. Skip to navigation Skip to main content Skip to footer When it comes to stewardship over people or property, there is a lot to consider both personally and legally.
Guardianship Basics When we speak of guardianship, it almost always refers to the stewardship an adult has over a child. Conclusion To summarize, guardianship and conservatorship are very similar in that they both refer to responsibility for and stewardship of a person or their property.
Author Recent Posts. Rhonda Royse. You have 3 days from the day you file your petition to serve the papers on thbe ward. If you are not able to serve within that time, you can go back to the ProbateDivision clerk's office before the 3 days are up. They will give you a new Notice of Hearing and you will get an additional 3 days. If you need more time after that, you will have to file a written request for more time and a judge will have to approve it. The ward must get the papers at least 15 days before the hearing on your petition.
What do I do after the papers are served? The person who served the papers on the ward must complete the Affidavit of Personal Service , which you can download here and complete on the computer. You must still print and file it with the court. The Affidavit of Service should include the date, approximate time, and location that the papers were served.
It should also state that the person who delivered the papers is over 18 and not a party to the case. The person who delivered the papers to the ward must sign and notarize the Affidavit of Service. You must file the signed, notarized Affidavit of Service with the court. What happens next? The judge will appoint several people to assist him or her throughout the process: A guardian ad litem, who gathers information and reports to the court.
An attorney to represent the interests of the ward. A visitor, generally a social worker, who does a mental examination of the ward. An examiner, typically a doctor, who assesses the ward for capacity.
The people appointed by the judge will do an investigation, including meeting with the ward and family members, and report to the judge. The judge will schedule a hearing to determine whether to appoint a guardian or conservator.
When will the hearing be? The hearing is usually is five weeks after the initial filing. The court will contact you with your hearing date. If you need to reschedule the hearing, call the Probate Division clerk at as soon as possible. Keep reading below for information about what to do in case of an emergency. Does the ward have to come to the hearing? The ward's court-appointed attorney will make a recommendation to the judge, who will usually approve that decision. The court can excuse the ward from attending if the ward is unlikely to add to the proceeding, or if he or she would be confused or injured.
Usually, the ward does not attend if he or she is on a ventilator, is incapable of speech or movement, or is severely demented. What will happen at the hearing? The courtroom is usually empty when guardianship and conservatorship applications are pending.
In delicate cases, the judge may close the courtroom to the public even if people want to watch. Usually, the hearings are informal. The parties and their lawyers simply sit at the tables at the front of the courtroom and talk to the judge.
If you have an attorney, the attorney will ask you questions. If you do not have an attorney, you can simply explain to the judge why you want to be appointed as guardian or conservator, and why you are qualified to do the job. The ward's attorney may also ask you questions, but usually this does not happen.
Although it is usually not necessary, you or your attorney and the ward's attorney may call witnesses to testify about facts that are relevant to the petition, and you may both ask each other's witnesses questions. You may also present documents or other evidence to the judge. How can I get a lawyer to help me during this process? Click here for a list of organizations that may be able to help you.
You may be able to find a private lawyer who will represent you and ask the court to be paid out of the ward's assets or out of a special fund. See the next question to learn how this works. Click here for useful information about hiring a private lawyer.
How do the lawyers get paid during these hearings? Before getting paid, all of the lawyers the ward's lawyer and yours, if you have one must file a fee petition, describing their fees in detail. All parties have 21 days to object to the other side's fees. After that, the judge issues an order directing the lawyers' fees to be paid. The lawyers' fees are paid in one of two ways: If the ward has assets that can be easily accessed, the attorneys will be paid out of those assets.
Usually, the attorneys will ask to be paid from a special guardianship fund established by Congress. If the ward has no assets, or they are tied up in a house that cannot be sold, the guardianship fund will pay the lawyers' fees. What does it mean to If you are appointed as conservator, you must post bond.
A guardian does not need to post bond. You post bond by asking a bonding company to issue a bond on your behalf, which you file with the court after your petition is granted. The purpose of a bond is to insure that if the conservator does not do his or her job correctly or loses or steals the ward's assets, the ward will be protected.
If the ward's assets are lost or stolen for any reason, the court will order the bonding company to pay the value of the bond to the ward. The bonding company may then sue you for the money it had to pay. If you posted property, such as a house, as security for the bond, the bonding company may foreclose on that property to get its money back. At the hearing on your conservatorship petition, the court will ask whether you can post bond. Before the hearing, you should find a bonding company that is willing to issue a bond for you, and bring a letter from the bonding company with you to the hearing.
You can find a bonding company through the Yellow Pages. Bonding companies will write bonds to most people who own their own homes and have proof of stability and employment. The fees are relatively low. My family member or friend is experiencing an emergency and needs a guardian right away.
Can this process be done more quickly? In an emergency, the court can appoint a temporary healthcare guardian for 90 days, or an emergency guardian for 15 days. Click here for a petition to be appointed a day emergency guardian. You can fill out the form online, but you will still need to file it with the court. If you want to ask the court to appoint you as a day temporary healthcare guardian, click here for the proper form.
Reporting Requirements Courts often give guardians broad authority to manage the ward's affairs. Alternatives to Guardianship Because guardianship involves a profound loss of freedom and dignity, state laws require that guardianship be imposed only when less restrictive alternatives have been tried and proven to be ineffective. Less restrictive alternatives that should be considered before pursuing guardianship include: Power of Attorney. A power of attorney is the grant of legal rights and powers by a person the principal to another the agent or attorney-in-fact.
The attorney-in-fact, in effect, stands in the shoes of the principal and acts for him or her on financial, business or other matters. In most cases, even when the power of attorney is immediately effective, the principal does not intend for it to be used unless and until he or she becomes incapacitated.
Representative or Protective Payee. This is a person appointed to manage Social Security, Veterans' Administration, Railroad Retirement, welfare or other state or federal benefits or entitlement program payments on behalf of an individual. In some states this proceeding can be voluntary, where the person needing assistance with finances petitions the probate court to appoint a specific person the conservator to manage his or her financial affairs. The court must determine that the conservatee is unable to manage his or her own financial affairs, but nevertheless has the capacity to make the decision to have a conservator appointed to handle his or her affairs.
Revocable trust. A revocable or "living" trust can be set up to hold an older person's assets, with a relative, friend or financial institution serving as trustee. Alternatively, the older person can be a co-trustee of the trust with another individual who will take over the duties of trustee should the older person become incapacitated. Read more. Social Security's Benefits for Spouses Social Security doesn't just pay retirement benefits to retired workers; in some circumstances, it also provides benefits X Need more information?
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