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Helpful Links
- National Guardianship Association (NGA)
- NGA Ethical Principle Cards (Printer Friendly)
- NGA Standards of Practice
- NGA Agency Standards
- National Resource Center for Supported Decision-Making
- The Fundamentals of Guardianship: What Every Guardian Should Know
- Idaho Bar Association Q & A on Guardianship and Conservatorship
- Idaho Legal Aid
- Supplemental Security Income 101- A Guide for Advocates
- 2018 Medicare 101 Presentation
- Guardianship and Conservatorship- BrightStar CEU
Frequently Asked Questions
Guardianship
A procedure whereby a competent, suitable person is appointed by the court to take care of another person called the “ward.”
A child under the age of 18 whose biological parents are unable to provide the necessary care because of death, termination of rights or circumstance, a developmentally disabled (retarded), or incapacitated person.
An incapacitated person is often an older person in your family who is having good days and bad days, can no longer handle his or her finances, gets lost easily, is forgetful and confused, has been diagnosed with Alzheimer’s disease or dementia, or has become unreasonably paranoid.
The spouse, adult child or sibling of a proposed ward may be appointed as guardian. In some instances, a professional guardian may be appointed as guardian.
Yes. Generally it does not take two people to do the job of one, but under certain circumstances more than one family member can be appointed as a co-guardian. An example would be when both parents are appointed guardians of a developmentally disabled adult.
A family member or trustee must file a petition with the Court to have a guardian appointed.
You should consult an attorney familiar with guardianships to file a petition with the Court to appoint a guardian. The Court will appoint a guardian ad litem attorney to represent the ward and will appoint a person called a court visitor to investigate the circumstances and file a written report with the Court on whether a guardian should be appointed. A hearing is required before a guardian will be appointed. At that hearing, the person petitioning to be the guardian will testify about why a guardian is needed and the plans for the ward’s future care. If the Court appoints a guardian, Letters of Guardianship will be issued.
A guardian takes care of the ward, makes sure the ward has clean clothes, proper food, transportation, medical care, and a place to live. A guardian’s rights and responsibilities are much like those of a parent for a child. A guardian generally does not handle the ward’s finances.
No. The law specifically provides that a guardian shall not be liable for the ward’s debts. The guardian is not personally responsible for payment of the ward’s medical and nursing, home care, clothing, food, and necessities.
The ward’s estate pays the fees and costs associated with the petition and appointment of a guardian.
Guardianship does not mean that the ward’s freedom is taken away. Guardianship provides an umbrella of protection for the ward. Guardianship means a competent person is appointed to make sure that the ward has a place to live, clean clothes, and is not victimized.
The guardian may have authority to handle the ward’s finances if they are minimal. A conservator may be appointed to handle the ward’s finances, sell assets such as the ward’s home, make contracts for living arrangements for the ward, and borrow money.
The guardian is the great communicator and is responsible for keeping all interested parties informed of the ward’s status. All family members should have a fair opportunity to visit with the ward and stay involved in their own way. The guardian is the keeper of the gate, so to speak, and coordinates the family’s effort to care for the loved one.
An attorney appointed by the court to represent the best interests of the proposed ward in a guardianship proceeding. The guardian ad litem attorney appears in court on behalf of the ward. The ward’s estate pays for the guardian ad litem attorney.
An attorney or social worker appointed by the court to investigate the circumstances of the alleged incapacitated person and submit a written report to the court as to the appropriateness of appointing a guardian. The Court Visitor acts as the court’s “eyes and ears.” The Court visitor does not appear in Court unless requested to do so.
The Court will usually ask the ward’s physician to write a letter to the Court to verify the ward’s incapacity.
Yes. Guardianship actions are dramatic actions, and, therefore, the Court will appoint a guardian ad litem attorney and court visitor in each case unless there is a good reason not to. The guardian ad litem attorney and court visitor are there for the protection of the ward. They work together to see that the most appropriate person is appointed as guardian under the circumstances.
Yes. The guardian is required to submit a short statement to the court each year which tells the Court where the ward is living and updates the Court on the health, hobbies, needs, and any significant changes in the ward’s status in the previous year. The report is generally due on the anniversary date of the guardian’s appointment.
A person for whom a guardian has been appointed.
The guardian’s proof of appointment as guardian and authority to act and be in charge of the ward.
Generally, a guardianship lasts until the ward dies. If the ward’s health significantly improves and the ward no longer needs a guardian, the guardianship may be terminated.
Yes. After a guardian is appointed, the Court stays involved to handle issues such as termination of the guardianship, resignation of the guardian, or the appointment of a successor guardian if the guardian can no longer act.
Yes. The Court will examine the facts and determine if an emergency exists. An emergency may exist if the State has started mental commitment proceedings, if there are important medical decisions to be made immediately, or if the person is likely to suffer substantial harm without the appointment of a temporary guardian. A temporary guardianship may not exceed 60 days.
Yes. The Court may impose limitations on the guardian, such as obtaining approval of the Court to move the ward.
The overall cost of the three professionals involved can vary greatly depending upon the circumstances of the particular case. Unfortunately, some actions are part of a very negative family activity and become problematic when disagreement prevents an expedient resolution of the issues, which results in increased professional. If there is “family harmony” and there are no problems, the professional fees will be substantially less.
Letters of Guardianship are your proof of authority. They cannot be revoked by anyone other then the Court. The ward cannot be influenced to make changes. The Letters of Guardianship are readily acceptable by all medical and long-term care institutions. Although a durable power of attorney for health care may suffice for a short-term medical emergency, a guardian should be appointed in a long-term care situation. Taking a shortcut may result in your loved one not receiving the attention he or she needs.
The main purpose of a trust is to provide administration of financial assets. A living trust may provide assistance in the management of the ward’s affairs, but does not relate to decisions involving health care, living arrangements, and activities of daily living. The trustee of a living trust does not have this authority, and a living trust is not a substitute for guardianship.
Conservatorship
Conservatorship is a procedure whereby a competent, suitable person is appointed by the court to manage the financial affairs of the ward.
A child under the age of 18, developmentally disabled (retarded), or incapacitated person.
The spouse, adult child or sibling of a ward may be appointed as conservator. Where the ward has substantial assets, a professional fiduciary is often appointed as the conservator.
A family member, trustee, or the Area Office in Aging (Adult Protection) may file a petition with the Court to have a conservator appointed.
A conservator manages and protects the ward’s assets and makes sure that the ward’s bills are paid.
Trustees and conservators both act as fiduciaries and must comply with high standards of conduct. A trustee is appointed by the individual in the trust document and the conservator is appointed by the court. An individual can remove his or her own trustee, while a conservator can only be removed by the court. A trustee’s duties are outlined by the trust document and a conservator’s duties and responsibilities are governed by statute and court orders. A trustee manages only those assets transferred to the trust. A conservator has the authority to marshal assets for the benefit of the ward.
No. The law specifically provides that a conservator is not personally liable for the ward’s debts.
Yes. The conservator is required to file an inventory of the ward’s assets within ninety (90) days of the appointment by the Court. Thereafter, the conservator must file annual reports which update the Court on the ward’s income and expenses.
The conservator’s proof of appointment as conservator and authority to transact business on behalf of the ward.
The court makes the appointment of the conservator and oversees the administration of the ward’s estate. The court provides a forum where problems, issues and concerns regarding the management of the estate may be addressed and/or approved. This is important because families need a place where their differences can be settled.
In some instances, Durable Powers of Attorney and Living Trusts properly obtained may negate the need for a conservatorship. However, Durable Powers of Attorney obtained in the middle of the night from the incapacitated person or Revocable Living Trusts created at the request of family members are probably worthless. A Durable Power of Attorney given by an incapacitated person may be given to more than one person and may be given to someone who is less than honest. An agent acting under a Durable Power of Attorney is not subject to any accounting or reporting requirements, thus they have power with no obligation to report or be responsible. In addition, Durable Powers of Attorney are subject to revocation and may not be recognized by financial institutions.
The appointment of a conservator supersedes any powers of attorney.
No. Incapacity for guardianship relates more to the activities of daily living, while incapacity for conservatorship actions relates to the ward’s ability to handle financial affairs.
No. An independent determination is made in each case as to whether the cost of the action is justifiable.
No. Similar information is necessary for each action. Many times a petition for guardianship and conservatorship are filed together.
No. A conservator is duty bound to follow the known testamentary scheme.
The statute provides for a bond to be posted by the conservator, but in many cases the court does not require a bond.
The conservator is appointed by the court after a formal hearing and can only be removed by the court.
Absolutely. The court is always available to handle issues and problems, including the removal of a conservator who is unable to perform adequately.
Absolutely. The conservator must file an accounting at least annually and more often if ordered to do so by the court. A copy of the accounting can be furnished to all interested parties. A copy of the accounting may also be obtained from the court.
No. As long as the conservator can perform adequately, he or she can live anywhere.
Yes. The test for incompetency for a will is much different than the test for incapacity for a guardianship and/or conservatorship.
No. The conservator and/or the court can determine whether the ward can manage some funds, a small checking account, and/or charge cards. The conservator may set up a small commissary account for the ward’s use.
No. However, if the ward is incapacitated and would be dangerous driving an automobile, the guardian should take reasonable steps to protect the public.
A conservator may be reasonably compensated. The amount varies depending upon the size of the estate and the work involved. The Court will set the compensation amount.
A conservator can be appointed in an uncontested matter, absent an emergency, in four to six weeks. If the matter is contested, the appointment of a conservator takes considerable more time.
Yes. The court may appoint a temporary conservator in an emergency situation or during the pendency of a contested matter.
If the funds are still intact, the conservator can take action to recover the assets.
No. The cost is about the same.
The conservatorship estate is paid to the personal representative of the deceased ward’s estate.
Maybe. A conservator may be appointed for the specific purpose of applying for benefits or handling litigation.
Absolutely not. The conservator can never create a creditor-debtor relationship between him- or herself and the ward.
Yes. Many times a conservator will have to arrange short-term financing for a project.
Yes. The conservator should have sales of real property approved by the court, after notice to all interested parties.
There is no legal requirement to have a lawyer assist in filing for conservatorship. However, it is a special proceeding best handled by professionals.
If the conservator has maintained accurate records, the reports to the court are not difficult to prepare. Problems arise when the conservator has not properly handled the money or maintained accurate records.
The Court may order the Conservator to come to Court and give testimony regarding why the accounting was not filed. The Court may impose penalties for failure to file the accounting, including penalties for contempt of court.
The Court has the power to surcharge the conservator personally for losses suffered by the ward as a result of a conservator’s inappropriate conduct and in serious cases criminal charges may be filed.
The Court is often frustrated with families who have not started the proceedings when they should have and claim that there is an emergency. For instance, the family will initiate the petition for the appointment of a guardian and conservator after their parent has lost many thousands of dollars and then expect the court and the conservator to recover the lost funds. When families wait too long to file the action, serious injury and/or death to the parent or family member who is incapacitated can result.
Prepared by: The Tax Probate & Trust Law Section of the Idaho State Bar