What are a guardian and a conservator?
In Maryland, there are two types of Guardian: Guardian of the Person, as described in this paragraph, and Guardian of the Property (also called conservator in some jurisdictions). When someone becomes incapacitated due to illness, injury, or disability, the court appoints a guardian to handle healthcare and certain non-financial decisions for that person. A guardian can be anyone over the age of 18, but they must also be able to show that they are qualified to make these decisions for their loved one. A guardian is not necessarily the person who is the caregiver over the incapacitated individual.
What is a conservator?
A conservator is appointed by the court to make financial decisions for an incapacitated person. In some states, those who are appointed “conservator of the estate” are those who make financial decisions. Those who are appointed “conservator of the person” handle the same issues as a “guardian.” Conservators can be expensive, as is the process to obtain one. There is also the potential that the incapacitated individual may be taken advantage of. To avoid a conservatorship, designate a power of attorney for your financial and medical care.
Does my elderly loved one need a guardian?
Maybe. If your family member is unable to make healthcare decisions on her own, due to an injury following an accident, an illness, or disability, and she has not designated a healthcare power of attorney, Maryland law provides for surrogate decision-makers by statute. If the disabled person is of questionable capacity, a guardianship process may be needed for any decisions to be made.
When is a conservator more appropriate than a guardian?
In some cases, someone may be perfectly capable of making her own healthcare decisions, or has signed a health care power of attorney, but is unable to manage her finances. In this case, a conservator (guardian of the property) would be more appropriate. If an individual cannot make financial or healthcare decisions, both may be appropriate.
Who does the court appoint as a guardian or conservator?
A court will appoint the person it deems most competent to fill the role of conservator or guardian. In a court proceeding, a separate attorney is appointed, at the family’s expense, to represent the disabled person and make recommendations. In general, the person must be over the age of 18. The court’s first choice is a spouse or other close family member. If those people are available or are unwilling to serve, then they may consider extended family or friends. If those people are unwilling or unavailable, or there is a high degree of arguing, then the court will often appoint a neutral third party, such as an attorney, to act as a conservator or guardian. I have been appointed to serve in that capacity many times.
Is this really necessary?
With proper advanced planning in place from a competent estate planning attorney, the need for a guardian or conservator should be completely avoidable. It is an expensive and time-consuming process that allows very limited options. For situations where it is too late to plan, the Court process is needed.
Resources:
ElderLawAnswers. (Accessed November 29, 2019) https://www.elderlawanswers.com/questions-and-answers/Guardianship/Conservatorship
LawHelp.org. (Accessed November 29, 2019) https://www.lawhelp.org/dc/resource/guardianship-and-conservatorship-frequently-a
