Guardianship

FAMILY | JANUARY 2024

Differences between Guardianship and Conservatorship for Adults with Special Needs

Guardianship and conservatorship are legal arrangements that can be used to protect the rights and interests of adults with special needs. However, these arrangements can be complex and challenging to navigate.

Duration of Conservatorships/Guardianships

The duration of conservatorships or guardianships for minors is generally limited - that is, until they turn adult age. There is an exception: unless they are mentally incompetent, then the guardianship or conservatorship may continue in its present form or a new proceeding may be required.

Incompetence and the Guardianship/Conservatorship Legal Proceeding

Generally, the process of guardianship or conservatorship begins when a person files a petition with the court to "open up" a guardianship or conservatorship proceeding. Usually, a parent opens such a proceeding for a child, or an adult child or spouse opens such a proceeding for their incompetent parent or spouse.

When does a Guardianship or Conservatorship become Necessary?

A guardianship or conservatorship is necessary when it involves the concept of one person caring for another who is not competent to care for their affairs themselves. In the case of children, they are, by law, considered not competent to make binding legal decisions by themselves until they reach the age of majority.

The Legal Consequences of Incapacity with no Preventative Legal Documents

What if you did not plan ahead and are now faced with a family member who has become incapacitated? Legal issues with guardianships and conservatorships.

Child Support

Child support is almost always a part of the marital settlement agreement. This represents the money the court will order, or the parties can agree to be paid, usually on a monthly or weekly basis to one spouse for the support of the children. Usually, the support is paid to the spouse who has custody, since it is necessary for that spouse to provide food and shelter on a regular basis.

Child Custody

Obviously, child support is no longer the province of the wife. No longer are the children simply awarded to the wife by a court and the husband is left to the process of visitation. In fact, in many recent divorces, much of the fight has centered on the custody of the children issue. Fathers are putting up much more of a battle seeking custody of their children.

The Disadvantages of Guardianship/Conservatorship Legal Proceedings

In the event that you or a loved one becomes incompetent, any person can start the proceedings for a guardianship (for a child) or conservatorship (for an adult). This may put you at several disadvantages if you were not prepared for such an event, such as:

State Laws Regulating Durable Powers of Attorney

Most states recognize Durable Powers of Attorney. However, like Durable Powers of Attorney for Healthcare, the laws in each state vary. Each state has their own requirements and limitations. Some states recognize that a Durable Power of Attorney will take effect immediately upon execution. This means that you should be extremely careful before you draft this document and have it executed.

Preparation for a Living Will

A living will is an extremely useful document that outlines your wishes for medical treatment in the event you become incapacitated or diagnosed with a terminal illness. The main difference between a will and living will is when they each go into effect. A will only goes into effect after death while a living will goes into effect once a person becomes incapacitated before death.