When an individual lacks the mental capacity to make his/her own decisions, and that individual has not executed powers of attorney for health and/or finances (or the agent under those powers of attorney is not acting appropriately), it may be necessary to petition the Court for guardianship. Alternatively, some individuals who have mental capacity to manage their finances may, for a variety of reasons, wish to delegate that authority to someone who will be supervised by the court. That proceeding is known as a conservatorship. This page will describe each of those processes in greater detail.

Guardianship is a court proceeding to appoint an individual to make personal and financial decisions for a person who is incompetent. A person is deemed incompetent if he/she is determined by a court to be substantially incapable of caring for him/herself or incapable managing his/her property by reason of developmental disabilities, chronic mental illness or “infirmities of aging” (meaning senile dementia including Alzheimer’s disease). In certain circumstances, guardianships may also be ordered without a finding of incompetency in cases in which an individual is a spendthrift.

In the context of a guardianship, whether the matter is contested or not, there will be a hearing at which there will be medical testimony (generally in the form of a written doctor’s report, but sometimes involving oral testimony) as to the mental condition of the proposed ward, as well as other questions involving the suitability of the proposed guardian.

In the context of a conservatorship, no medical testimony is required, and there is no finding of incompetency.

If the guardianship proceeding also seeks placement of the ward in a nursing home or community based residential facility (CBRF) or certain other services, a request for protective placement and/or protective services will be required. If petitions for those services are filed, an evaluation will be ordered that determines whether the proposed ward has a condition creating a primary need for residential care, whether this is a condition that is likely to remain permanent and what level of care provides the least restrictive alternative.

The attorneys at Hill Glowacki, LLP have litigated contested guardianship and protective placement/services matters and have experience counseling family members and fiduciaries on the best strategic approach to such disputes, and they regularly represent guardians and conservators who seek court approval for various actions involving the ward’s/conservatee’s funds. They also have experience asserting and defending claims for violations of financial and healthcare powers of attorney.