Guardianships and Conservatorships
Tristate Guardianship and Conservatorship Attorney
Tristate Guardianship and Conservatorship Attorney in WV, KY, and OH
Guardianship and conservatorship are similar across jurisdictions. When an adult cannot manage his or her care, health, safety, medical, or housing needs, and the person has made no arrangements for someone to assist him or her, the court may appointment a person to be responsible for managing some or all of those needs. The legal process works to balance the constitutional rights of the proposed protected person with the need for a responsible person to see to his or her personal or financial needs.
The process to establish guardianship or conservatorship can be confusing, making the engagement of a tristate guardianship and conservatorship attorney advantageous. Whether you’re in West Virginia (WV), Kentucky (KY), or Ohio (OH), a tristate guardianship or conservatorship attorney can help you understand the role of a guardian or conservator, when guardianship or conservatorship is appropriate, and how the appointment process works is key to assuring the safety and well-being of your loved one in need.
What is a Guardian or Conservator?
A guardian is the person appointed by the court with the power and duty of taking care of an adult the court has legally determined to be incapable of taking care of his or her own needs. The person to be cared for is known as the protected person in WV or a or ward in KY or OH. The guardian is responsible for managing and arranging the care of the protected person or ward.
A conservator is the person appointed by the court to manage the financial affairs and estate of the protected person or ward.
When to Request Guardianship or Conservatorship
Seeking guardianship or conservatorship can be a cumbersome and expensive legal process and may not be the only solution to aid a loved one in need. For example, if your loved one is competent, he or she could grant a power of attorney to a family member to allow that family member to pay bills, endorse and deposit checks, and enter other legal agreements on his or her behalf. For real estate transactions, the power of attorney may need to be recorded in some states.
For a loved one who needs or wants assistance with medical decisions, an advance directive is an option. Health care directives can grant a family member or friend the power to make healthcare decisions on behalf of someone else on matters ranging from daily care issues to end-of-life decisions. In some states, Ohio for example, such an advance instruction is called a durable power of attorney for health care.
If the adult at issue is incompetent for legal purposes, he or she cannot sign legally binding documents such as a power of attorney or advance directive. Usually, the determination of whether a person is incompetent must be made by a judge, with the assistance of testimony from family members, friends, acquaintance, and medical providers.
What Happens During a Guardianship Proceeding?
The legal process to obtain guardianship and conservatorship involves court proceedings. The person seeking such authority files a petition in the local court. All interested persons, including close family members, are entitled to notice. Exactly what must be included in the notice and to whom it must be sent varies by state.
Normally, decisions about guardianship and conservatorship are made by the judge without a jury. More than one hearing may be required before a court awards guardianship or conservatorship.
If family members and friends do not agree, or the alleged incompetent objects to the proceedings, the court may appoint a guardian ad litem or an attorney to represent the alleged incompetent’s point of view throughout the proceeding. (A guardian ad litem is just a guardian for purposes of representing the person’s interest in the litigation and has no power to make financial or medical decisions.) In some cases, such as West Virginia guardianship or conservatorship cases, the court always appoints a guardian ad litem.
What Responsibilities Does a Guardian or Conservator Have?
The duties of a guardian vary by state but generally are universally significant: to manage and see to the care of the protected person or ward. The guardian becomes, effectively, the person in charge of the ward’s physical and mental well-being. The duties of a conservator are similarly significant, but they are limited to the management and care of the protected person’s or ward’s estate and financial matters.
In other words, the guardian is a fiduciary to the protected person or ward, meaning that he or she owes the highest legal duty of trust and care to that person and cannot act against his or her interest. This is a legal responsibility for which a guardian may be sued for damages if he is negligent or dishonest.
The guardian or conservator may also have a legal duty to report regularly to the court regarding the ward’s health and/or financial affairs. This report may be called an accounting, meaning that the guardian must account for all expenditures and other financial dealings of the ward. A tristate guardianship and conservatorship attorney can assist a guardian or conservative in establishing a record-keeping plan and making these reports in a timely manner.
Why You Need a Tristate Guardianship and Conservatorship Attorney
Watching a loved one struggle with health problems and mental decline is devastating. Medically, there may be no way to help. But there are ways to protect your loved one from making disastrous financial decisions and to assist him or her with their medical care. Your family can consult with a trusted tristate guardianship and conservatorship attorney licensed in WV, KY, and OH, by contacting Jenkins Fenstermaker PLLC through their website contact form or by calling toll-free at (866) 617-4736.