GUARDIANSHIPS & CONSERVATORSHIPS

Every now and then I receive a phone call from a person who tells me that his family is in need of durable powers of attorney for his mother. I have to ask two questions that I usually know the answers to. The first question, where is his mother? The answer is usually in a nursing home or they are trying to get her into a nursing home. The second question, is she lucid? Most of the time the answer is no for she just had a stroke, thus the need for a guardianship or conservatorship arises so that some family member can obtain the authority to act on behalf of their mother.

This problem can be avoided with a properly drafted general durable power of attorney for financial matters and for healthcare decisions. Petitioning the court for either a guardianship and/or conservatorship can take time which you may not have if you need to admit a family member into a nursing home of your choosing as quickly as possible.

Here is some additional information that might be helpful:

What is the definition of disability?

Kansas law defines an “adult with an impairment” as a person whose ability to receive and evaluate relevant information, or to effectively communicate decisions, or both, even with the use of assisted technologies or other supports, is impaired such that the person lacks the capacity to manage such person’s estate, or to meet essential needs for physical health, safety or welfare, and who is in need of a guardian a conservator, or both.

No person who is being treated by prayer in the practice of the religion of any church which teaches reliance on spiritual needs alone through prayer for healing shall be determined to be an adult with impairment. For that reason alone, he is not considered to lack the capacity to meet essential needs for physical health, safety or welfare because of such person’s reliance upon treatment. [/expand]

What is a guardian and ward?

A guardian is an individual who is appointed by the court to act on behalf of a ward for which a petition for the appointment of a guardian has been file.

What is a conservator and conservatee?

A conservator is an individual who was appointed by the court to act on behalf of the conservatee for whom a petition for the appointment of a conservator for has been filed.

Who picks the guardian or conservator?

Depending upon the situation, the court could pick a parent, fellow sibling, another family member, friend, corporate entity, etc. A WORD OF CAUTION: One can only hope that the family is on board as to who should be appointed by the court. If not, a contested guardianship and/or conservatorship proceeding can get ugly and very expensive.

What is a guardian’s annual report?

The guardian appointed by the court is required to file an annual report concerning the status of the ward. The forms are provided by the clerk of the district court. The report covers such topics as (1) where the ward has resided during the reporting period; (2) the approximate number of times the guardian has had contact with the ward, the dates of such contacts, and the last date of contact; (3) a summary of medical, social, vocational, and other professional services received by the ward; (4) if the ward is institutionalized, the results of an investigation into the nature and appropriateness of the ward’s care and treatment; (5) changes in the mental and physical condition of the ward observed by the guardian; (6) any major problems related to the guardianship which have arisen; (7) an opinion of the guardian as to the need of the continuation of the guardianship and whether it is necessary to increase our decrease the powers of the guardian;(8) compensation requested and expenses incurred by the guardian; and, (9) any other information required by the court. A WORD OF CAUTION: This report has to be notarized and filed in a timely manner. So we have to stay on top of some of our clients to get it done.

What is a conservator’s annual accounting?

A conservator is required to file an annual accounting with the court which depicts the amount of income received and expenses paid during the reporting period. Furthermore, the conservator is required to list all of the assets and liabilities of the conservatee. A WORD OF CAUTION: The report has to be notarized and filed in a timely manner.

What happens if the ward conservatee passes away?

This event petition to terminate has to be filed with the court along with a final guardian report and/or conservator accounting.

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