Monitoring

Enforcement of Orders

Without enforcement, guardianship and conservatorship orders hold little authority. Enforcement can take a number of forms, including suspension, contempt, removal, and appointment of a successor guardian or conservator. The National Probate Court Standards (Standard 3.3.19) directs courts to enforce its orders by taking appropriate actions and moreover, to take timely action to ensure the safety and welfare of a respondent upon learning of a missing, neglected or abused respondent, or where the respondent's estate is endangered. The Standards urge courts to remove the guardian or conservator and appoint a successor when a guardian/conservator is unable or fails to perform the duties set forth in the appointment.

According to the Standards, courts should not be passive, but rather, prioritize the safety and well-being of the respondent and the respondent's estate. Prompt hearings are called for when reports or accountings are not filed in a timely manner, are inadequate, or complaints suggest concerns related to the respondent's well-being or estate. The Standards offer the following examples of court sanctions in response to issues that arise:

Sanction issued:

In response to:

Contempt citation

Failure to file required reports on time after receiving notice and appropriate training and assistance

Order freezing the assets and suspending the powers of the conservator

Indications of theft or mismanagement of assets

Notice of a show cause hearing to probate court in new jurisdiction

Guardian or conservator has left the court's jurisdiction

Disciplinary action for attorneys

Attorney guardians/conservators may have violated their fiduciary duties to the respondent

Suspension and appointment of a temporary guardian/conservator

Failure to perform duties: Welfare, care or estate of the respondent require immediate attention

The due process rights of the guardian/conservator should be protected when initiating sanctions. The removal of a guardian because of his or her inability or failure to fulfill the responsibilities should be followed by an emergency appointment of a temporary guardian or conservator. The court should then order an investigation to locate the guardian/conservator and examine the person's conduct, with appropriate sanctions ordered where appropriate.

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