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Guardianship & Conservatorship Basics

Information on guardianships (guardian of the person) and conservatorships (guardian of the estate).

Guardianship & Conservatorship Basics

This section highlights general information and research related to guardianships/conservatorships. Further in-depth information, tools and resources related to the establishment of guardianships/conservatorships, monitoring, abuse prevention and responses to wrongdoing, intended specifically for court personnel, can be found under Resources for Courts.

A guardianship is a relationship created by state law in which a court gives one person or entity (the guardian) the duty and power to make personal and/or property decisions for another person. Guardianships were designed to protect the interest of incapacitated adults and elders in particular. At times, guardianship may refer to both the person and the estate, however, often the term conservatorship is used when referring to matters of the property only, but not personal affairs.  Specific guardianship terminology varies from state to state. Generally agreed-upon terms are provided below:

  • A Guardian or Conservator is an individual or an organization named by the court order to exercise some or all powers over the person and/or the estate of an individual.
  • A Guardian of the Person is a guardian who possesses some or all power with regard to the personal affairs of the individual.
  • A Conservator, also called Guardian of the Estate, is a guardian who possesses some or all powers with regard to the real and personal property of the individual (often referred to as fiduciaries).

Due to the seriousness of the loss of individual rights, guardianships are considered to be an option of "last resort." The court can order either a full (plenary) or limited guardianship for incapacitated persons. Under full guardianship, wards relinquish all rights to self-determination and guardians have full authority over their ward's personal and financial affairs. Wards lose all fundamental rights, including the right to manage their own finances, buy or sell property, make medical decisions for themselves, get married, vote in elections and enter into contracts. For this reason, limited guardianships—in which the guardian's powers and duties are limited so that wards retain some rights depending on their level of capacity—are preferred.

Courts rely on a variety of types of guardians, including private and professional individuals and entities. Courts prefer to appoint a family member to act as guardian over an incapacitated relative, but it is not always possible to find family members or friends to take on this responsibility. In recent years, an entire service industry of private professional guardians has grown out of the increasing demand for guardians. In addition, most states have a public guardianship program, funded by state or local governments, to serve incapacitated adults who do not have the means to pay for the costs associated with guardianship and do not have family or friends who can serve in a guardianship capacity.

Resources

The process can vary significantly by state, court and judge. Generally, the process begins with the determination of incapacity and the appointment of a guardian or conservator. The term “guardianship” used here refers to both, guardian of the person and guardian of the estate, as the overall process is the same.

Interested parties, such as family or public agencies, petition the court for appointment of guardians. The court is then responsible for ensuring that the alleged incapacitated person's rights to due process are upheld while making provisions for investigating and gauging the extent of incapacity. Should the individual be deemed incapacitated, the judge appoints a guardian and writes an order describing the duration and scope of the guardian's powers and duties. Once a guardianship has been appointed, the court is responsible for holding the guardian accountable through monitoring and reporting procedures for the duration of the guardianship. The court has the authority to expand or reduce guardianship orders, remove guardians for failing to fulfill their responsibilities and terminate guardianships and restore the rights of wards who have regained their capacity.

Generally, guardianships include five separate court actions: petition, pre-hearing activities, court hearing, monitoring and termination or transfer. Descriptions of each step follow.

Petition

  1. A petition for guardianship is filed with the court.
  2. The court appoints a Guardian ad Litem (GAL), court investigator, or visitor; appoints counsel for the respondent if the respondent is not represented by a lawyer; orders a professional evaluation of the respondent; and sets a hearing date.

Pre-hearing activities

  1. The respondent is evaluated.
  2. The GAL/ investigator/ visitor interviews parties, reviews records and makes recommendations.
  3. The evaluation reports are filed.

Court hearing

  1. The petitioner, nominated guardian or conservator, respondent and respondent's attorney attend the hearing.
  2. Witnesses may testify.
  3. The court determines capacity and if the respondent is found to be incapacitated, determines whether a limited or full guardianship/ conservatorship is required, appoints a guardian or conservator and sets the powers of the Guardian or conservator.

Monitoring

  1. The guardian/ conservator must submit plans, reports, inventories and accountings as specified by the court and statute.
  2. The court reviews submissions and conducts periodic review hearings to determine whether the plans are appropriate, the guardian/ conservator is properly performing the specified responsibilities and whether there have been changes in the incapacitated person's condition that require modification or termination of the guardianship/ conservatorship.

Termination or transfer

  • a) The court terminates the guardianship/ conservatorship and orders a final report or accounting upon finding that the guardianship/ conservatorship is no longer required or upon the death of the incapacitated person.
  • b) The court transfers oversight of the guardianship/ conservatorship if the incapacitated person has moved to another jurisdiction.
Resources

Background checks and bond requirements are becoming increasingly standard practices when determining the qualifications of potential guardians and conservators. Background checks help determine whether the prospective guardian or conservator has been:

  • Convicted of a relevant crime;
  • Determined to have committed abuse, abandonment, neglect, or financial or sexual exploitation of a child, spouse, or other adult;
  • Suspended or disbarred from law, accounting, or other professional licensing for misconduct involving financial or other fiduciary matters; or
  • Documented with a poor credit history.

Given the authority of guardians and conservators and the potential for abuse and exploitation of protected persons, criminal histories and credit checks are considered appropriate safeguards. The National Probate Court Standards recommend that when courts do receive potentially disqualifying information, they weigh the seriousness and recentness of the offense or misconduct, its relevance to the case, the nominee's most recent record and the vulnerability of the respondent.

Bonds are required to protect the assets of a protected person when placed under a conservatorship. The requirement of bonds for guardians and conservators is considered standard practice for courts, but a point of contention for prospective family guardians and conservators who may have difficulties qualifying for a bond or may see it as an unnecessary expense. The National Probate Court Standards urge probate courts to require all conservators to be bonded for an amount commensurate with the size of the estate, except in unusual circumstances (Standard 3.3.15). If there is misfeasance or malfeasance that diminishes the respondent's estate, a bond will restore the principal, thus protecting the vulnerable person's assets.

While few states statutorily require that guardians receive training, most courts provide some level of orientation or education either through printed manuals, videos, online training and information and in-person briefing sessions. Examples are:

General training opportunities and professional affiliations are increasingly available through national organizations. The mission of the National Guardianship Association (NGA) "is to establish and promote a nationally recognized standard of excellence in guardianship." NGA encourages family guardians to join its organization.

Further details on how courts use background checks and consider risk factors to determine the qualifications of a prospective guardian or conservator and utilize bonds and required training in order to prevent neglect or abuse can be found under 'Establishment of Guardianships - appointing a qualified guardian' here.

Reporting requirements

The monitoring process begins with the establishment of a guardianship/conservatorship and the submission of initial reports. Generally, reports include an inventory and annual updates, at minimum. Increasingly, there are greater demands that guardians and conservators submit prospective care plans and estate management plans as well.

While annual updates are required by statute in nearly all states, courts have flexibility in terms of requiring more frequent updates and additional information in cases that may benefit from an increase in oversight.

The National Probate Court Standards identifies some basic timeframes and expectations for the submission of reports (Standard 3.3.16), which are summarized below.

Required at the hearing or within 60 days

Guardianship filings

  • Guardianship plan
  • Report on respondent's condition

Conservatorship filings

  • Inventory of the respondent's assets
  • Plan on how resources will be allocated to meet respondent's needs
Advance notices required by the court

For guardianships:

  • Respondent's intended absence from the court's jurisdiction in excess of 30 days
  • Any major anticipated change in the respondent's physical presence (residence)

For conservators:

  • Submit for court approval amended plans if there are any anticipated or real deviations from the approved plan
Follow-up reports
  • Annual accountings (for conservators) or updates

The Standards suggest the contents of guardians and conservatorship reports.

Guardian Report: Descriptive information on the respondent's condition, the services and care being provided to the respondent, significant actions taken by the guardian and the expenses incurred by the guardian.

Conservator Report: Statement of all available assets, the anticipated financial needs and expenses of the respondent and the investment strategy and asset allocation to be pursued. The conservator should consider the purposes for which funds are to be managed, specify the services and care provided to the respondent and their costs, describe significant actions taken and the expenses to date.

Monitoring practices

Monitoring practices in many state and local courts are problematic. The most common reasons given for poor monitoring practices are insufficient staffing and resources.

The National Probate Court Standards (Standard 3.3.17) and Recommendations adopted at the Third National Summit on Guardianship are consistent in what constitutes basic monitoring practices:

Recommendation #2.3: Probate courts should monitor the well-being of the respondent and the status of the estate on an ongoing basis, including, but not limited to:

  • Determining whether a less restrictive alternative may suffice;
  • Ensuring the plans, reports, inventories and accountings are filed on time;
  • Reviewing promptly the contents of all plans, reports, inventories and accountings;
  • Independently investigating the well-being of the respondent and the status of the estate, as needed; and
  • Assuring the well-being of the respondent and the proper management of the estate, improving the performance of the guardian/conservator and enforcing the terms of the guardianship/conservatorship order.

The 22 recommendations adopted at the Fourth National Guardianship Summit include the following:

Recommendation 4.2: States and courts should enhance the wellbeing and safety of all adults who have court-appointed guardians by implementing a post-appointment, person-centered monitoring system that includes the following elements:

  • Uniform statewide forms available online and in hard copy, in multiple languages, with clear instructions and sample completed forms in plain language.
  • Written care and financial management plans serving as baselines for subsequent reports, which can be filed electronically or in hard copy.
  • In addition to regular review of guardian reports and accountings, periodic in-person visits, verification of financial reports and status review of the appropriateness of the choice of guardian and implementation of less restrictive options to enhance autonomy.
  • An independent statewide entity to investigate the guardian’s conduct in appropriate cases.

Recommendation 4.3: The state’s highest court and state legislature should establish, and identify or appropriate funding for, advocacy measures to safeguard the rights of adults subject to guardianship and to augment the court’s review process, including:

  • Annual judicial in-person review.
  • Continuing representation by a qualified lawyer for the adult appointed at the outset of the case, preferably a legal services, public defender, or other public service lawyer to minimize expenses to the estate.
  • A complaint process for response to guardianship conduct that is accessible, user-friendly, transparent and effective for all, including those with access and functional needs which is in compliance with Title V of the Rehabilitation Act of 1973, as amended and the Americans with Disabilities Act of 1990, as amended.
  • An advocacy program for adults subject to guardianship using trained volunteers to visit and advocate for the adult’s rights and preferences throughout the case, similar to the Court-Appointed Special Advocate Program (CASA) for children, but which does not supplant the right to a lawyer.

There are a number of courts that have gone well beyond basic monitoring practices to ensure the best outcome for protected persons. Generally, improvements in monitoring are carried out through a combination of technology, court staffing and volunteer programs.

For details on the practices and steps courts can take in the reporting and monitoring process, read here for guardianships and here for conservatorships.
Additional resources: