NOVEMBER 29, 1993 VOLUME 1, NUMBER 2
When an individual is unable to make decisions about health care or finances, it may be necessary or advisable to seek appointment of a guardian and/or a conservator. Before embarking on such a course, however, the family, friends or other persons interested in the patient’s welfare should understand the process, limitations and differences between the available options.
Person vs. Estate
The first distinction to be understood is between guardianship (of the person) and conservatorship (of the estate). While both require action by the court, they involve very different issues.
A guardian has the power to determine where the patient will live and who will provide medical treatment. In fact, a guardian has the power to direct that medical treatment will be withheld, even though the withholding of care will likely lead to the death of the patient.
A conservator, on the other hand, has control over the finances of the patient. While a guardian has the power to determine where the patient will live, the conservator is responsible for review and payment of bills for care (and all other expenses). Obviously, the duties of guardians and conservators are interrelated and require cooperation.
Powers of Attorney
Many people are confused by the differences between powers of attorney (POAs) and guardianship or conservatorship. All of the powers available to a guardian or conservator can be delegated to an “attorney-in-fact” (the agent named in a POA). By signing a POA, the patient can avoid the expense, delay and uncertainty associated with guardianship and conservatorship, as well. It is important to understand, however, that a POA requires the patient to understand the meaning and purpose of the document; if the patient has lost capacity, it is too late to consider executing a POA.
The Court Process
Guardianship and conservatorship proceedings are very similar, and are often undertaken at the same time. The patient must be served with a copy of the court papers seeking appointment of a guardian and/or conservator, and an attorney, physician and “visitor” will be appointed. Usually, the patient’s attending physician will be appointed for the purposes of the proceeding, and instructed to file a written report.
Before the scheduled hearing date, the patient should have been visited by both the attorney and the visitor. The patient is entitled to be present at Court for the hearing itself, but is not required to attend.