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Generally it can be said that the guardian makes decisions about the person, such as medical or housing decisions, and the conservator makes decisions about the property or the finances of the person. A guardian and a conservator can be the same person or institution or they may be different. For example, a guardian could be a person and a conservator could be a trust company or bank.
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When an adult becomes unable to make responsible decisions, then that adult may be in need of a guardian, conservator, or other alternative. The law states that a guardian may be appointed if a Court determines that a person is an incapacitated individual. The law defines an incapacitated individual as:
A conservator may also be appointed if the person is unable to manage his or her property or finances effectively.
A guardian or conservator may be appointed by a Probate Judge after a petition is filed in the Probate Court. The petition may be filed by anyone interested in the well being of the adult. When the petition is filed, a hearing will be scheduled. In addition, the Court may appoint a guardian ad litem to investigate the situation and make a recommendation to the Court prior to the hearing.
On the date of the hearing, the petitioner and anyone else who wants to take part in the hearing goes before the Judge and explains the need for a guardian or conservator. The Judge will decide whether to appoint a guardian and/or a conservator.
The person who is appointed guardian is required to file an Acceptance of Appointment. The person who is appointed conservator must also file an Acceptance of Appointment and may also be required to file a Bond to protect the adult’s assets. After filing the Acceptance of Appointment (and Bond, if required), Letters of Authority will be issued to the guardian or conservator. The Letters of Authority give the guardian or conservator the right to perform certain duties, unless the Court restricts their authority.
If a life-threatening, medical emergency exists, the Judge may appoint a temporary guardian without a hearing unless the judge determines that a hearing is necessary. A letter from a doctor or social worker may be required to explain the nature of the emergency. Please note that a second hearing is required.
The Court will also review a guardianship within a year of the guardian being appointed and at least once every three years afterwards.
The account must list receipts (monies in) and disbursements (monies out). Save your receipts; one must be presented to the Court for each disbursement.
Anyone, including the adult, may file a petition to terminate the guardianship or conservatorship or to have a different guardian or conservator appointed. With the Court’s permission, the guardian may resign at any time. When the adult is no longer an incapacitated individual or dies, the Court should be notified immediately so that the guardianship or conservatorship can be ended and the Court’s case closed. Before the conservator can be discharged, a Final Account will have to be filed and approved by the Court and the Court will have to be satisfied that the adult or his or her estate has received whatever assets remain.
If you have any questions about what services or procedures may be available that might make guardianship or conservatorship unnecessary, you may contact the Commission on Aging, Department of Community Mental Health, or Department of Human Services.
If you have questions, please seek legal advice from an attorney. By law, court employees are not permitted to give legal advice.