Guardians and Conservators

 

Exactly Who is a Guardian?

A guardian is an individual that has been designated by a court (usually the probate department of the circuit court) to have the care and safekeeping of a child or of an disabled adult person (that is, the court system has legitimately determined them to be disabled).

Exactly Who is a Conservator?

A conservator is a person or a corporation, such as a financial institution or trust company, assigned by a court (again, generally the probate division of the circuit court) to manage the home of a minor or of a disabled adult person.

Scales of justice

When is a Guardian or Conservator Appointed to a Person?  And Which one is it?

A minor or disabled person must be represented in the court system by someone that is considered to have “capacity.”  Normally, the same individual is typically selected both guardian and conservator, although it is possible for there to be a different guardian and conservator for the minor or disabled person.

Moms and dads have the initial top priority for the appointment as conservators for the estates of their kids.  This appointment is generally only needed when a minor will receive property from an estate or if there is a settlement action or injury action on behalf of the deceased.  This would also happen when there is an inheritance from a decedent’s estate or a few other source of residential property or revenue.

Parents

The parents of a minor are appointed as the guardian or conservator by statute in every state for their children and, thus, need not be selected hence by a court. But when a child is considered emancipated, or their parents have predeceased them (or they are incapacitated), then the court will appoint a guardian and conservator.  The court does give some weight to the person picked by the minor if the minor is over 14 years. Further, the court places great weight on the individual that it set forth in the last will and testament of the last of their parents to die (or in any trust of those parents).

Suitability

In any event, the person designated by the court must be suitable and certified. Given that most children are incapable to decide on a guardian and conservator, then the court will appoint the most appropriate person.  This generally is someone related to the child, such as a sibling, grandparent or other close adult relative who wants to serve in that role.

Incapacity of a Person

An incapacitated or handicapped individual may designate his or her own guardian or conservator if, at the time of the hearing, the person has the ability to provide the court with a rational reason for such an appointment.  Additionally, you can designate some to be your guardian or a suitable person or qualified firm to function as conservator.  You can do this be drafting a document to that effect if done in writing and witnessed by at least 2 witnesses within 5 years before the date of the hearing.  Frequently, these designations are made in Durable Powers of Attorney, which we draft as a matter of course in our will and trust packages.

If no appropriate individual has actually been nominated by the incapacitated or disabled person, the court will generally look to the following order: the spouse, parents, grown-up children, grownup brothers and siblings and various other close adult family members.

If there are no relatives eager or able to serve, the court may assign any sort of suitable person (such as a close friend) or, if no one is willing to serve, then a general public supervisor. A person need not be a resident of the state of Kansas to get consultation as a guardian or conservator. However, the court does take into consideration the factors surrounding the difficulties of non-residency when determining who is best suited as a guardian or conservator.

Law library

Disability and Incapacity – What does it mean?

As specified by Kansas statute, an “incapacitated individual” is someone who no longer has the proper capacity to make their own decisions.  That is, they no longer are able to determine the proper meaning of normal terms of life and cannot be relied upon to make decisions that are in their overall best interests, especially those in a health capacity.  For example, someone who is not able to make themselves dinner or cannot remember to take their medicine would not be considered to have capacity.  However, the inability to drive a car, while disheartening, would not be considered incapacity.  The ability of someone to meet essential needs for the person’s physical health and wellness, safety or well-being, is key in determining disability or incapacity.

What does it mean, in a legal sense, to be disabled or incapacitated?

The response hinges on whether the court has actually made a finding of complete special needs and inability or simply partial impairment and inability. If the court determines that a person is simply partly handicapped or partly incapacitated, the individual is still assumed qualified and will be able to make their decisions, except for those decisions that are specifically spelled out in the court order. On the other hand, if the court finds a person totally disabled or entirely incapacitated, or both, the person is presumed to be incompetent for all legal functions. An individual that is held by a court to be impaired is described as a “protectee” and an individual that has been determined by a court to be incapacitated is referred to as a “ward.”

Law Books

What are the Duties – Guardians and a Conservators

A guardian must consistently behave in the very best interests of the ward. The guardian has a fiduciary duty to provide for the ward in the ward’s best interests.  Thus, all decisions are looked at through that lens.  Many guardians do not fully understand this, as they (as people) look through the lens of the totality of the circumstances.  But the court only looks at this from the point of view that the guardian should act in the ward’s best interests at all times.

A conservator, under the supervision of the court, is accountable for the security and management of the protectee’s economic estate. The conservator has to effectively and sensibly spend the protectee’s possessions, use such properties for the protectee’s hygiene and upkeep, and account for all funds received and used up in support of the protectee. As a result of the accountancy needs enforced by legislation and the requirement of acquiring a court order authorizing most expenses from the estate, the conservator has to work very closely with a legal representative in order to carry out the protectee’s estate properly, regardless of how much property there is.

Is the Conservator Personally Responsible for the Debts?

No, as long as the conservator indicates that he or she is acting upon part of the protectee or ward. This can get complicated, so it may be best to seek legal counsel to determine what obligations are not considered personal to the conservator.

Ok, so How Do You Start Guardianship and Conservatorship Proceedings?

Proceedings are begun when a “petitioner” files, in the probate department of the circuit court in the region where the minor or claimed incapacitated or disabled person (the “participant”) lives, an application for the appointment of a guardian and/or conservator. The petitioner and the respondent must be represented by counsel in these hearings. After application is submitted, the court will grant a hearing date. When it come to a minor, notice of the application must be served prior to the hearing (to them and their current known parent, next of kin, current guardian or conservator, or anyone else having care and wardship of the child. When it come to a supposed incapacitated or disabled person, notice of the application have to be served upon the respondent, his/her partner, parents, children or various other close relative over 18 years; anybody behaving in a representative capacity with respect to any one of the respondent’s funds; and any type of person having care of them.

How Are Custody and Conservatorship Proceedings Terminated?

Fortunately, when a child reaches age 18, the appointments of a guardian and custodian end automatically.  When a child reaches age 18, a conservator must prepare, and submit to the court, a final accounting of the estate of the child.  Once approved by the court for the final accounting, the conservator transfers the estate to the former protectee and, after filing a last receipt with the court, the conservator and guardian are released by the court from any type of more duty.

 

The Eastman Law Firm
4901 W. 136th Street, Ste. 240
Leawood,
Kansas
66224

Phone: (913)908-9113
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