Probate and Guardianship
Probate Court does not come into most peoples life until they lose a family member. They look around and say, now what do we do? In the midst of the emotions of the loss, they have to deal with all the details of title to property or bank accounts. We can help you probate a loved ones Will or Administer their Estate. The key to all this is who gets to decide, you or the law?
Other than death, one of the most traumatic things that happens in a family is when a loved one can no longer care for themselves. Often, Alzheimer or Dementia lead to this. You may need to get legal authority to take care of them and their finances
A Guardianship gives you the authority to take care of your loved ones housing and physical needs, like healthcare issues. A Conservatorship gives legal authority to manage their finances. All is done under the supervision of the Probate Court.
FREQUENTLY ASKED QUESTIONS
Q. WHAT IS A GUARDIAN?
A. A guardian is a person appointed by the court to make healthcare and other mostly non-monetary decisions for someone who cannot make these types of decisions because of an injury, illness, or disability.
Q. WHAT IS A CONSERVATOR?
A. A conservator is a person appointed by the court to take care of someone's finances when he or she cannot make these types of decisions because of an illness, injury, or disability.
Q. DOES MY FAMILY MEMBER OR FRIEND NEED A GUARDIAN OR CONSERVATOR?
A. Sometimes, an illness, injury, or disability can make it difficult or impossible for someone to make decisions about his or her health care, money, living situation, or other personal matters. Examples may include:
Someone who is in a coma.
Someone who is mentally challenged.
Someone who has Alzheimer's disease or other forms of dementia.
Someone who has had a stroke.
Someone who has suffered a brain injury.
If a court finds that a person cannot make any or all of his or her important life decisions, that person is incapacitated.
To decide whether someone is incapacitated, the court holds a hearing and looks at all the facts. It will find that a person is incapacitated if it believes the facts show the person cannot:
understand the facts about his or her financial, health care, or living situation well enough to make decisions about any or all of those matters, or
clearly communicate his or her wishes about any or all of those matters.
If the court decides to appoint a guardian or conservator for an incapacitated person, the incapacitated person is called the ward.
Q. WHEN WILL THE COURT APPOINT A GUARDIAN, AND WHEN WILL IT APPOINT A CONSERVATOR?
A. It depends on the situation, and in what ways the ward is incapacitated. Every situation is different, so the court has to look at each set of facts when making its decision.
Q. CAN THE COURT APPOINT BOTH A GUARDIAN AND A CONSERVATOR?
A. Yes, if the court finds it appropriate.
Q. CAN THE SAME PERSON BE BOTH THE GUARDIAN AND THE CONSERVATOR?
A. Yes, but the court can also appoint different people to serve as guardian and conservator.
Q. WHAT IF THE PERSON MADE A DURABLE POWER OF ATTORNEY BEFORE BECOMING INCAPACITATED?
A. If the durable power of attorney covered the types of decisions the person needs to have made (financial, health care, etc.), the agent named in the document has the power to make those decisions.
A. If the person made a durable power of attorney for one purpose and not another (such as a durable power of attorney for health care, but not a financial durable power of attorney), the court may still appoint a guardian or conservator to step in and make the types of decisions that the durable power of attorney did not include.
Q. WHO DOES THE COURT APPOINT AS A GUARDIAN OR CONSERVATOR?
A. The court's first choice is a close family member, usually a spouse or adult child.
A. If no close family member is available or suitable, the court will consider other relatives or friends.
A. If no family member or friend is available, the court will usually appoint someone else often an attorney.
Q. DO I WANT TO BE A GUARDIAN OR CONSERVATOR?
A. It depends. Being a guardian or conservator enables you to be absolutely sure your loved one is being well looked after. However, it is also a huge responsibility.
A. As a guardian or conservator, you must give regular reports to the judge. This can be quite time consuming. You may have to post a bond and make regular financial reports to the Court.
A. Being a guardian or conservator is a long-term commitment. It lasts for the rest of the ward's life, unless the court appoints someone else to take your place.
A. The job of guardian or conservator is very important. You do not want to take on this responsibility unless you are absolutely sure you can do the job.
Q. WHAT IF MY BROTHER OR SISTER AND I BOTH WANT TO SERVE AS OUR PARENT`S GUARDIAN OR CONSERVATOR?
A. When two people in the same class both want to be the guardian or conservator, the court will choose based on its opinion of the ward's best interests. It will consider the petitioners' abilities and characters, along with the ward's wishes, if these are known.
Our Attorneys Can Help
If our FAQ didn’t answer your legal questions, please contact us today by calling 706-324-5606 or emailing us at firstname.lastname@example.org. Our attorney has years of experience helping families and there loved ones handle these issues.