By: Rudman Winchell Attorney Tracy Roberts
The Basics of Guardianship/Conservatorship
A guardianship or conservatorship is a relationship in which one or more persons are appointed by the Probate Court to make personal or financial decisions for a minor or an incapacitated adult who, due to physical or mental impairment, is unable to make responsible decisions about his or her personal affairs or property or both. The Probate Court decides whether a guardian or conservator is needed and who the guardian or conservator will be.
What is a Guardian?
A guardian is appointed by the Probate Court to care for a person who is determined to be incapacitated. A person for whom a guardian has been appointed is referred to as an “incapacitated person.” In general, a guardian has the same powers and duties with regard to the incapacitated person as a parent has with regard to a minor child except that the guardian is not required to use the guardian’s own money to support the incapacitated person. The Probate Court is required to frame the Order of guardianship and conservatorship to encourage maximum self-reliance and independence of the incapacitated person, based on the evidence of such person’s actual mental and adaptive limitations.
What is a Conservator?
A conservator is appointed by the Probate Court to protect and manage the money and property of a person who is unable to manage his or her own property and financial affairs effectively because of mental or physical illness or disability, or who is a minor without any or appropriate parental authority. The person for whom a conservator has been appointed is called a “protected person.” A conservator has the duty to protect, invest, and use the assets for the protected person’s benefit and must file an accounting with the Probate Court at least annually or as required by the Probate Court. If a conservator is not appointed for the incapacitated person, the guardian may also have limited responsibility for the incapacitated person’s property and money.
Procedure for Appointment
Any person who is concerned about another person’s ability to manage his personal affairs or assets may file a petition for appointment of a guardian or conservator or both. If you are the petitioner, you may ask to have yourself appointed as the guardian or conservator or both, or you may nominate someone else. Notice of the petition must be given to all “interested parties,” including the individual’s relatives, domestic partner, caregivers, and for adults over 55, the State of Maine. The petitioner must also file a guardianship plan or conservatorship plan, stating how the person’s needs will be met, and a report of a physician or psychologist documenting the person’s lack of capacity to make personal or financial decisions. After the petition is filed, the Probate Court usually appoints a neutral person, known as a “visitor.” The visitor will meet with the person alleged to be in need of a guardian or conservator as well as the person nominated to be guardian or conservator and then make an independent report to the court. The court may also appoint a guardian ad litem and perhaps an attorney to represent the person. The court then holds a hearing to decide whether a guardianship or conservatorship is needed, who should be appointed, and what the limitations are on their authority.