Guardianship and Conservatorship in Personal Injury Law

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What is a guardianship?

A guardianship is the appointment by a court of an individual or entity to provide care and to make personal decisions for a minor or an incapacitated adult.  In personal injury cases, some people might be under guardianship due to coma, brain injury or other severe trauma.  A guardian can be appointed for a child if the child’s parents are likewise incapacitated.  Before being appointed as guardian, the individual must provide background information to the court, such as any felony history, prior times the person acted as a guardian for someone, and other information.  A person for whom a guardian is appointed is called a ward.

A guardian has powers and responsibilities similar to those of a parent. The guardian may make personal decisions for the ward relating to living arrangements, education, social activities, and authorization or withholding of medical or other professional care, treatment, or advice. The guardian must always make decisions that are in the best interests of the ward. The guardian must always make sure that the ward is living in the least restrictive environment in which the ward can remain safe.  A guardian must submit a written report to the court annually on the date of the guardian’s appointment. The report must include information on the health and living conditions of the ward and a current physician’s report.

If an adult has executed a valid Health Care Power of Attorney, Mental Health Care Power of Attorney, and Living Will (for end of life decisions), a guardianship might not be needed. These forms can be found at: under “Life Care Planning” tools. An adult can only appoint an agent under a power of attorney if the adult is competent to understand the power of attorney document. However, even if an adult completes the powers of attorney and living will, he or she could still be subject to a guardianship proceeding. A guardianship petition can be filed with the court if someone believes the person nominated as the heath care power of attorney agent is not acting in the best interests of the incapacitated person.

What is a conservatorship?

A conservatorship is much more common in personal injury cases.  It is a court proceeding to appoint an individual, or an entity like a private fiduciary, to manage the financial affairs of a minor or an incapacitated adult who is unable to manage his or her own property or financial matters.  The person for whom a conservator is appointed is called a protected person.  Other, in personal injury cases, parents serve as conservators for their children’s personal injury settlements.  Before being appointed as conservator, the individual must provide various background information to the court, such as any felony history, prior times the person acted as a conservator for someone, and other information.
The court may also appoint a conservator for a single transaction or a limited purpose, such as placing funds from a personal injury settlement into a restricted account until the minor turns eighteen.  The limitation is noted by the judge on the letters of appointment.  A conservator has the powers and responsibilities of a fiduciary.  The conservator may use a protected person’s money only for the benefit of the protected person. A conservator may not make gifts of the protected person’s assets unless the court has issued an order that authorizes the gifts. A conservator cannot use the protected person’s money to pay the conservator’s bills.