A Guardian is a person that is appointed by the court to make decisions about medical care for and take care of the daily needs of a person that is no longer able to do so for themselves. If you believe that a loved one needs a guardian, you must file a Petition for the Appointment of a Guardian with the court in the county where the incapacitated person lives. In order to file the petition, you need a physician’s answers to questions about the person’s mental and physical ability to make decisions and take care of themselves.
If you are appointed as the guardian of a loved one, you will be able to make decisions for that person, even if your loved one does not agree with the decision. This most often comes up when a family member needs to be moved to a nursing home to receive care, but wants to continue to live at their home. Because a guardianship takes away some of the rights of the incapacitated person, the court will always appoint an attorney to represent the incapacitated person and to make sure that if a guardian is appoint that they are necessary, that the incapacitated person is allowed to be in the least restrictive environment possible, given their situation.
A Conservator is a person that is appointed by the court to make financial decisions for and take care of the property of person that is no longer able to do so for themselves. The process for appointing a conservator is similar to the process for appointing a guardian, but a conservator may be necessary in the case of a person who does not need a guardian. Some people cannot make good financial decisions, manage their income, or pay their bills, but can make good decisions about their medical care and can take care of their own daily needs. If both a conservatorship and guardianship are necessary, the same person can serve in both capacities.
Many guardianship and conservatorship cases are uncontested, meaning that the family member or loved one obviously needs help taking care of their daily needs and finances and no other family members or friends wish to be appointed as guardian or conservator. In other cases, multiple family members or friends petition the court to be appointed as guardian or conservator for the same incapacitated person because they cannot agree to the same course of action or are afraid that one of the other petitioners will mismanage or steal the assets of the disabled person.
In contested cases, our attorneys, investigate your loved one’s medical and financial issues, and the other parties asking the court for guardianship and conservatorship. We will work with the incapacitated person’s court appointed attorney to assemble evidence showing why it is in the incapacitated person’s best interest that you be appointed as guardian or conservator, and, if necessary, present it to the court in a contested hearing.
Powers of Attorney as an Alternative
When a family member is having trouble handling their own affairs or taking care of his or herself, Clients often ask us if they should we can use Powers of Attorney or if a Guardianship or Conservatorship is necessary. The answer to this question depends on the specifics of your family member’s situation and is something that you should discuss with an experienced guardianship attorney. The factors considered are whether your loved one is able to take care of themselves or manage their finances at the current time, whether your loved one would be able to understand and consent to sign a power of attorney at the current time, and whether your loved one’s physician is uncomfortable making the decision that they are incapacitated required for health care powers of attorney and some financial powers of attorney.
Contact Our Guardianship and Conservatorship Lawyers
If you need to execute Powers of Attorney, contact the St. Charles lawyers of Flesner Wentzel. Call us at 636-442-4529. Consultations are free, and we offer flexible payment plans. Se habla Español.