The term ‘Protective Proceedings’ refers to the legal proceedings initiated to appoint someone to protect the person and property of an individual who cannot effectively manage his or her own affairs. Usually, that person (called the “Protected Person”) is not able to care for his or her affairs because of cognitive impairment. Therefore, proceedings are initiated to secure the appointment of a Guardian and/or Conservator for the administration of the Protected Person, and if necessary the Protected Person’s estate.
Guardianship, and/or Conservatorship, is a relationship created by state law in which a court gives one person, the “Guardian,” the duty and power to make personal and/or property decisions for another, the “Protected Person.” Designed to protect the interest of incapacitated individuals, particularly adults and elders, the terms used in court appointments are generally as provided below:
- A Guardian possesses powers with regard to the personal affairs of the Protected Person.
- A Conservator possesses powers with regard to the financial affairs of the Protected Person.
Under full Guardianship, as opposed to limited, the Protected Person involuntarily relinquishes all civil liberties and the Guardian has full authority over the Protected Person’s personal affairs. Under full Conservatorship, as opposed to limited, the Protected Person involuntarily relinquishes all financial prerogatives and the Conservator has full authority over the Protected Person’s financial affairs. Due to the serious loss of rights to self-determination, court’s view the appointment of a Guardian and/or Conservator, to be an option of “last resort.”
Although courts prefer to appoint a family member to act as guardian or conservator, they appoint a variety of types of fiduciaries, including private and professional individuals and entities. The court’s appointment of a Guardian or Conservator differs to some extent based on state law, but the process involves some common steps:
- Filing a Petition to initiate the court proceeding.
- Basing the Petition on a Medical Certificate that confirms the need for court involvement.
- In many cases, filing a Bond.
- Giving notice of the proceedings to the proposed Protected Person, all heirs and interested parties.
- A hearing to determine the capacity and need for a Guardian and/or Conservator.
Before initiating protective proceeding, it is recommended that you consider the following:
- Why are protective proceedings being sought?
- What is the nature of, and to what extent, is the Protective Person limited his or her ability to care for herself or himself, or to manage her or his financial affairs?
- Have less intrusive alternatives been examined?
- What Guardianship/Conservatorship powers are needed and the anticipated duration of those powers?
- What is the nature, and estimated value, of the Protected Person’s assets and estimated annual income.
Following appointment, guardians and conservators generally have the following responsibilities:
- The Guardian shall file with the Court a Guardian’s Care Plan/Report within 60 days from this appointment, and an Annual Plan/Report thereafter.
- The Conservator shall file with the Court a Conservator’s Inventory within ninety (90) days of the appointment.
- The Conservator shall file a Plan for managing, expending and distributing the assets of the Protected Person’s estate with the Court.
- Conservator shall file annual Accounts with the Court, the first Account of the Conservator must be presented for allowance within fifteen (15) months after Appointment.
If you have questions on protective proceedings, or if we can help you, call Elder & Disability Law Advocates.