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GENERAL INFORMATION
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Wayne Howell, Esq.
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Overview

Guardianship and Conservatorship are two special relationships that can be established by the courts to address the requirements of persons who are incapacitated and/or need protection.

A Guardian protects the person; a Conservator protects property. A person can be appointed as Guardian, Conservator or Guardian and Conservator.

The person who initiates the Guardianship/Conservatorship proceeding is called the Petitioner. The person for whom the Guardian/Conservator is appointed is called the Ward.

 
   
Minors  

Guardianship and Conservatorship are simpler with minors than with adults, because a minor is already a protected person by virtue of his age.

A minor needs someone to act as a parent, so a Guardianship proceeding is appropriate whenever someone is needed to fill that role. Guardianship of minors is done in Juvenile Court.

A minor needs a Conservator when he has assets or income that might otherwise be wasted, such as the settlement from a personal injury claim. The point of the Conservatorship is to protect the minor’s assets so they will be available when the minor reaches age eighteen.

 

Adults

 

 Guardianship and Conservatorship are more complicated with adults, because an adult is presumed to be able to manage his own affairs. An adult needs a Guardian and/or Conservator when he has been found to be unable either to make or to communicate responsible life and healthcare decisions, and/or unable to handle his own financial affairs and therefore incapacitated and in need of protection, generally due to physical or mental illness or substance abuse.

Being declared incapacitated is a substantial infringement on a person’s basic rights, so for this reason a physician must examine the person and provide a report to the court, an investigator must visit both the person needing protection and the proposed Guardian/Conservator and issue his report, and the Court will appoint an attorney to represent that person’s interests in court.

The relationship between Guardian and Ward is essentially the same as a parent to a child, with the focus being the best interests of the incapacitated person.

The court has an interest in ensuring that the assets of an incapacitated person are not wasted or squandered, and so a Conservator must be appointed. A bond is required to protect any assets that are not deposited into a restricted account.

 
   
Costs  
Your Attorney’s Fee  

The fee to your attorney to prepare the documents and represent you throughout the proceedings varies depending on the nature and complexity of the case.

Guardianship for a minor, because it is fairly simple, is amenable to a flat legal fee.

Conservatorship for a minor can be simple as well, if the point is just to protect funds until the minor turns eighteen, such as in the case of a personal injury settlement.

If no attorney was involved in the settlement, the insurance carrier will usually handle the Conservatorship for you or pay the attorney’s fee to do so.

In adult cases, the lowest fee would be on a Guardianship only for a person with no significant assets or income and who is not contesting the matter.

A Guardianship and Conservatorship for an elderly couple is significantly more complicated. The complexity grows with the number and amount of assets and/or income that needs to be tracked down and managed. Multiple hearings may be required to ensure that all of the couple’s assets and/or income is protected. 

 
   
Associated Expenses  

 Some of the expenses associated with these matters are:

  • Filing fee to the court to initiate the process ($251.00)
  • Certification fees for the final documents (est. $60.00)
  • Costs for service of process. This varies depending on the difficulty of serving the person and the distance that must be traveled, but usually costs a minimum of about $70.00 per person. The proposed Ward(s) must be personally served. Other parties entitled to notice can sign a waiver so that notices may be mailed to them.
  • Cost for notice by publication. If any party refuses to sign a waiver and cannot otherwise be served, service can be by publishing in a newspaper over a period of several weeks. The cost generally runs between $175.00 and $225.00.
  • Fee for the court-appointed investigator ($400.00)(Adult cases only)
 
 
Additional Professional Fees(adult cases only).

In addition to the fee you pay your attorney, you can expect to incur the following professional fees:

  • Fee to Physician to examine the proposed Ward and prepare a report
  • Fee to the attorney who will represent the proposed Ward’s interests (depending on ability to pay)

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