Conservatorship and Guardianship

/Conservatorship and Guardianship
Conservatorship and Guardianship 2020-09-07T22:51:54+00:00

best estate attorneyWhen a person can no longer handle their own personal and financial affairs, a conservator should be appointed. Conservatorships generally are created when the person is incapacitated due to mental illness, medical disability or advancing age and requires daily assistance.


A conservator is a fiduciary, that is a person having a legal duty to act for and on behalf of court, a conservator will handle the person’s personal and financial affairs and could make medical decisions for the individual. The conservator could be a family the best interests of an individual. Depending on the needs of the individual and the opinion of the member, close friend, or an attorney.

Conservatorship is a legal determination, not medical determination; therefore, only the court can make one person the conservator of another person. The court’s decision is based on the determination that a person lacks capacity (or legal ability) to handle specific personal decisions, money and similar matters. The court will review reports from doctors, psychologists, or others with relevant information, to decide if an individual needs the oversight of a legal conservator. The court has the final decision-making responsibility and authority in those areas, such as health care, living arrangements and/or finances, for which conservatorship has been deemed necessary. All rights stay with the individual except for the specific areas in which the court transfers to the conservator. The conservator acts as the agent of the court.

How Does The Court Decide to Appoint a Conservator?

The court will use the reports and testimony mentioned above to decide if the individual is able to make important decisions in their lives or if they need help in certain areas such as:

  • Do they comprehend the idea of personal safety and can they make sound decisions about living arrangements and personal care?
  • Are they able to seek medical care when they are sick or injured and can they make medical appointments?
    • Can they make financial decisions such as paying their bills or taxes on time?
    • Do they understand the value of money and can they manage a checking or savings account and handle a paycheck or benefits check?
    • Do they understand the consequences of signing a contract and do they understand the significance of letters or correspondence they receive?


Remember that there is variation from county to county and from court to court in how the process is carried out. Some steps may be waived by some judges in some circumstances.

  • A petition is filed in the court which has jurisdiction over the individual.
  • A Guardian ad litem may be appointed for the individual to ensure that the individual’s right to due process is protected and the individual may contest the petition.
  • A physician’s statement is submitted, documenting the person’s lack of capacity.
  • The guardian ad litem, if appointed, investigates the facts of the petition and reports to the court.
  • The judge requests and considers additional evidence at their discretion.
  • A hearing is scheduled.
  • At the hearing, the judge rules on the person’s competence, whether conservatorship is necessary, and if so, in which areas.
  • The court assumes responsibility for the person in those areas where conservatorship is needed.
  • If they find a conservator is needed, the court appoints an agent (conservator) of the court, and issues an order defining the areas over which the conservator will have authority. The individual retains all rights which are not specifically removed in the order.

I have experience representing clients in conservatorship matters and Medical and Durable Powers of Attorney. I and my experienced conservatorship paralegals know the legal process and will guide you through the extensive and potentially frustrating process of forming and maintaining a conservatorship. Call us at (615) 444-3995 to schedule your no-fee and confidential consultation or fill out our online form to receive more information.