Guardianship and Conservatorship
When You Need Legal Counsel
At Baker Law Group, our experienced lawyers can help families to:
- Identify the responsibilities of a guardian and conservator and assist with court documents and proceedings;
- Review alternatives to court-appointments and avoid them when possible; and
- Establish an plan to care for minor children and dependents.
These topics are introduced below. Every situation is unique and having an experienced lawyer who understands your issues can save considerable time and expense. Baker Law Group offers a complimentary initial consultation to determine how we can assist you.
Responsibilities of a Legal Guardian and Conservator
The person who is appointed guardian or conservator is not often aware of the responsibility that accompanies the appointment. When the individual or ward is rendered powerless over their own personal needs, medical treatment or property, the responsibilities may be great.
Ongoing tasks will include reporting to the court. Once appointed, the guardian files care reports. A conservator files an inventory and accounts for the property, income, and expenses of the incapacitated person.
The guardian may need to ask for specific authorization from the court if the individual requires admittance to a facility or the administration of antipsychotic medication. In Massachusetts, this separate authorization is commonly referred to as a Roger’s guardianship.
Guardianship for Minors
Nominating a suitable person to care for your children if you become incapacitated or at death can be a difficult decision. It is also important to name alternate guardians, in the event your initial choice is not available or becomes unsuitable.
While the court gives great consideration to the person you nominate to serve as guardian, it ultimately makes its decision based upon the best interest your child. Since no one can truly be replaced, for some this decision is more about making it clear who a parent does not want to care for a minor child.
It is important to remember that a Last Will and Testament becomes effective upon death, so the nomination of someone to act as guardian for your minor children in your Last Will and Testament does not become effective until you die. In the event you need someone to serve as a guardian for your minor children while you are alive, Massachusetts allows parents to nominate a guardian on a temporary or emergency basis.
When a Minor is the Beneficiary
Making a bequest to a child or grandchild in a last will and testament, or naming a child as a beneficiary of a life insurance policy, individual retirement account (IRA) or 401(k), may have unintended consequences and costs.
A conservatorship of a minor’s estate or property may need to be established for a minor or other individual who lacks the capacity to receive an inheritance. Additionally, depending upon the amount that is left to the minor, a conservatorship may be required even though the minor is being cared for by a parent.
It is very common that an insurance company holding the proceeds of a life insurance policy require the establishment of a conservatorship over a minor before the company releases the money.
Avoiding a Probate Court Appointment
It is preferable that a person make known his or her own wishes in advance, including who should manage a person’s property and care for their personal needs.
While in some instances a guardianship and or conservatorship may become necessary despite proper planning, the following documents could avoid it when well-drafted.
- Durable power of attorney
- Health care proxy
- Living will
- Property funded trust
These documents also avoid the need for the accompanying court supervision, potential litigation, and responsibilities imposed upon the guardian or conservator– who is often a family member.
Managing a Social Security Benefit
To the extent that your responsibility is to only manage a benefit paid by the Social Security Administration, another alternative to establishing a guardianship is to serve as the representative payee for the person. This status is approved by the Social Security Administration, not the court, and obtaining this status, will not allow a representative payee to control other property of the individual.