Guardianships Articles
Concerns about Guardianships and Conservatorships

Guardianship and Conservatorships:

Petitioning the Probate Court for a guardianship or conservatorship should be the last option to be used rather than the first. This note will therefore explore some of the alternatives to appointing a guardian or conservator. These options are designed to be less intrusive on the life of the disabled person and less expensive than court proceedings.

Section 5103 of the Estates and Protected Individuals Code (EPIC) provides for the delegation of power by a parent or guardian. This section may be used by the parent of a minor, guardian of a minor, or the guardian of a legally incapacitated individual. It is very useful in situations when a parent or guardian is temporarily absent from the ward. For example, this method may be used when a child goes away to camp or on a trip or where the guardian of an adult goes on vacation and the disabled person remains in the home community. The power regarding care, custody or property of a minor child or disabled person may be delegated by a properly executed power of attorney. The duration of such delegation cannot exceed 6 months. If a guardian for a minor or legally incapacitated individual delegates any power under this section, the guardian shall notify the court within 7 days after execution of the power of attorney, and provide the court the name, address, and telephone number of the attorney-in-fact.

A conservatorship and, in many cases, a guardianship may be avoided by the disabled person executing a durable power of attorney appointing another person called an attorney-in-fact to handle their financial affairs and to make other decisions for them. A durable power of attorney differs from an ordinary power of attorney because it survives the incapacity of the principal. The document, to be a durable power of attorney, must contain the words "This power of attorney shall not be affected by disability of the principal," or "This power of attorney shall become effective upon the disability of the principal," or similar words showing the intent of the principal that the authority conferred shall be exercisable notwithstanding his or her disability, the authority of the attorney-in-fact or agent is exercisable by him or her as provided in the power on behalf of the principal notwithstanding later disability or incapacity of the principal or later uncertainty as to whether the principal is dead or alive. For this alternative to be available, the principal must be able to execute the power of attorney while still competent and able to understand what he or she is signing. If the document was validly executed, the attorney in fact may handle the principal's affairs after the principal is no longer able to do so. An attorney in fact may also act for the principal when the principal is under no disability if the documents authorize such actions. An attorney in fact may not act after they learn of the principal's death. From that point, only a personal representative has the authority to act for the deceased.

The EPIC now provides in sections 5506 to 5513 for the designation of a patient advocate. This is accomplished by a special type of power of attorney. The patient advocate is authorized to make medical decisions concerning the principal when the principal is unable to do so. This section contains numerous protections against the patient advocate abusing this authority. If properly appointed, the patient advocate can do such things as tell the doctors not to use artificial life support or to disconnect the principal from such supports. An attorney should be consulted when this document is drafted.

In many situations, a person's sole source of income is Social Security or Veteran's Administration benefits. A conservatorship may be avoided in such cases by having a person appointed payee to receive the benefits on behalf of the person. The payee would then expend such money for the benefit of that person. The payee is administratively appointed by the Social Security Administration or the Veteran's Administration. No probate court action is necessary and the probate court does not supervise the receipt or disbursement of such sums.

If a guardian has been appointed for a disabled person and no conservator is appointed, such a guardian may perform some limited acts normally done by a conservator without the necessity of having a conservator appointed. The guardian may institute proceedings to compel a person under a duty to support the disabled person or to pay sums for the welfare of the disabled person to perform that duty. The guardian may also receive money and tangible property deliverable to the disabled person and apply the money and property for support, care, and education of the ward.

TYPES OF GAURDIANSHIPS AND CONSERVATORSHIPS:

  • Guardian of a Minor - This guardian has the care and control of the minor much as a parent would have.
  • Limited Guardian of Minor - This guardian has the care and control of the minor. However, this guardianship differs from a regular guardianship in that the guardian cannot consent to the marriage of the minor, the adoption of the minor or the release of the minor for adoption.
  • Full Guardian of a Legally Incapacitated Individual - This guardian has the care and control of the adult much as a parent would have over their child.
  • Limited Guardian of a Legally Incapacitated Individual - A guardian of an adult who possesses fewer than all of the legal rights and powers of a full guardian and whose rights, powers, and duties have been specifically enumerated by court order.
  • Guardian Ad Litem -- This is not a guardian in the usual sense. A guardian ad litem is appointed to represent the interest of a party in a proceeding before the court where that party is unable to adequately represent them self. The guardian ad litem may make a recommendation to the court based upon what they believe to be in the best interest of the party they represent. They have no authority to make decisions for the party they represent and should not be confused with a guardian.
  • Guardian of the Person - This is the guardian of a developmentally disabled person. Such guardians are appointed under provisions of the Mental Health Code rather than the Probate Code. This guardian has the care and control of the developmentally disabled person (formerly referred to as a mentally retarded adult) much as a parent would have over their child.

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