A guardian and conservator are appointed by the court to care for and protect a person who is deemed unable to care for themselves. Therefore, among the guardian and conservator’s responsibilities are managing the protected person’s health and wellbeing as well as preserving their assets. While most people’s lifestyles and fortunes are decidedly different from Ms. Spear’s, the problems she has and continues to experience are a cautionary tale for all of us who do not name a durable power of attorney for healthcare and financial matters. In the absence of these legal documents reflecting your wishes should you become incapacitated, family members may petition a court to appoint a guardian and conservator to manage your well-being. Yet, as in Britney Spear’s case, some who are under the direction of a guardianship and conservatorship have no desire to be there. Keep in mind that the law is different in each state.
What Does Guardianship and Conservatorship Determine?
Generally, guardianships and conservatorships guide the life decisions of those in comas, suffer advanced forms of dementia, or are experiencing other serious injuries or illnesses. A “conservator” guides financial matters while a “guardian” is in charge of personal and medical decisions. In the case of Ms. Spears, two people (her father and her lawyer, who has since resigned) are acting as conservators, and financial institutions and other attorneys have involvement. One person may be guardian and conservator in less complex circumstances. Guardians and conservators follow court supervision and are held accountable to that court.
This court supervision acts as a power safeguard preventing guardians and conservators from mismanaging property or otherwise taking advantage of those under protection. Annual detailing of the guardian and conservator actions through reports to the court provides this oversight. Frequently, courts will require the guardian conservator to seek permission before making major decisions such as terminating life-support or requiring medications (in the case of guardianships), or selling real estate or other property (in the case of a conservator). Additionally, a conservator must often post a bond as an insurance policy protecting the conservatee’s estate from mismanagement.
What Issues can Arise with Guardianship and Conservatorship?
Britney Spears states that her conservators are unnecessary. They refuse her permission to marry and have more children while financially forcing her to pay exorbitant conservatorship and legal fees and take psychiatric medications she does not want to take. She also states that she was required to use a court-appointed attorney who did not communicate how to end her conservatorship or hire an attorney she believes has her best interest at heart. Keep in mind that no one knows the entire situation except those who were directly involved with the case. When the protected person enjoys celebrity status, information about the case is often misreported.
Most guardianships and conservatorships work remarkably well because the guardian and conservator are competent and trustworthy. Nonetheless, guardianships and conservatorships are expensive and can be avoided by adequately preparing durable powers of attorney before a physical or mental health crisis occurs. These legal documents provide a template for decision-making based on your wishes by the designated power of attorney(s). In the absence of these documents, the court will most often appoint a guardian and conservator who is a relative that is available to serve, such as a spouse or adult child.
A guardian and conservator will act until the court issues an order ending this responsibility which usually follows:
- The protected person’s death
- The protected person no longer requires this level of assistance
- In the case of a conservatorship, the assets are all spent
- The guardian and/or conservator can no longer handle the responsibilities or resigns
- The court removes the guardian or conservator due to a successful legal challenge by the protected person or an interested party
The process is simple to avoid an unwanted guardianship and conservatorship. Meet with an elder law attorney to draft your durable power of attorney documents to reflect your wishes should unforeseen physical or mental health illness befall you. Your chosen representatives will be those you trust to exercise your will if you are unable, and you will have peace of mind knowing that future decisions will reflect your wishes. If you have questions or would like to discuss your personal situation, please don’t hesitate to reach out. Contact our Albuquerque office at (505) 830-0202.