Baseball is almost the only orderly thing in a very unorderly world. If you get three strikes, even the best lawyer in the world can’t get you off. —Bill Veeck
What to do if You are Appointed as Guardian or Conservator for a Loved One by Thad J. Murphy, Attorney with Pearson Bollman Law
Thad J. Murphy of Pearson Bollman Law
If an adult lacks capacity to make decisions on their own behalf, the court will appoint a substitute decisionmaker: A “guardian” for decisions regarding well-being, and “conservator” for decisions regarding finances. Guardianships and conservatorships are legal relationships between a competent adult (the “guardian” or “conservator”) and a person who is unable to manage their own affairs (the “protected person”).
Some important aspects of guardianships and conservatorships:
• Read the court order. The court can authorize you to make legal, financial, and healthcare decisions for the protected person. Depending on the terms of the appointment and state law, you may have to seek court approval for certain decisions.
• Fiduciary duty. A guardian or conservator has a “fiduciary duty” to the protected person; thus, they are legally required to act in the best interest of the protected person and carefully manage the protected person’s assets. It is imperative that you keep your personal finances separate from the protected person’s finances. It is equally important to maintain detailed records of everything received, spent, or otherwise distributed.
• File reports on time. The court order should specify what reports must be filed. The first report is an inventory of the protected person’s property and a prospective financial plan. You are required to file yearly reports detailing what you spent and received on behalf of the protected person and any changes in the protected person’s health and/or living situations. After the protected person dies or the guardianship or conservatorship ends, the court will require a final report.
• Consult the Protected Person. You should include the protected person in your decision-making whenever feasible, and work to determine the protected person’s wishes and intentions.
• Don’t limit social interaction. Guardians and conservators may not limit a protected person’s interaction with family and friends unless such interaction would cause substantial harm.
If you are current a guardian or conservator, or want to explore options for a loved one, consult with an elder law attorney in your area.
Thad J. Murphy is an attorney in the Dubuque office of Pearson Bollman Law, located at 1635 Associates Drive, Suite 103, Dubuque. The attorneys at Pearson Bollman Law practice in the areas of estate planning, probate/trust administration, special needs trusts, guardianships and conservatorships, and elder law, which includes Medicaid and VA Pension Planning. If you have any questions or would like to register for one of our free workshops on estate planning, asset protection and elder law, please feel free to contact Thad Murphy at (563) 265-6971 or visit pearsonbollmanlaw.comand select “Events.” In these uncertain times, it is now more important than ever to have an estate plan that gives you and your family peace of mind. We are continuing to serve our clients by video conferencing or telephone meetings. In person meetings are not required.