Definitions

What is a Guardian/Conservator?

Guardianship or conservatorship is a legal, court-ordered relationship in which one appointed individual by the court becomes the substitute decision maker for another. The substitute decision making by a guardian and/or conservator is the most restrictive form of legal rights restricting all legal decisions that arise in the life of the incapacitated person.

Incapacitated Person (legal definition):

An adult who has been found by a court to be incapable of receiving and evaluating information effectively or responding to people, events, or environments to such an extent that the individual lacks the capacity to:

(i) meet the essential requirements for his health, care, safety, or therapeutic needs without the assistance or protection of a guardian

or

(ii) manage property or financial affairs or provide for his support or for the support of his legal dependents without the assistance or protection of a conservator. A finding that the individual displays poor judgment alone shall not be considered sufficient evidence that the individual is an incapacitated person within the meaning of this definition.

In short: An incapacitated individual is someone who cannot make decisions without assistance.

Guardian of the Person

If the decision maker is appointed by the court to become a guardian of the person, that person is responsible for the personal affairs of that person, including decisions regarding the person’s support, care, health, safety, habilitation, education, therapeutic treatment, and residential, unless the court order specifies otherwise.

Conservator

If the decision maker is appointed by the court to become a conservator for a person who has been deemed incapable for making financial decisions for themselves, that decision maker is responsible for managing the person’s estate and/or financial affairs as specified in the court order.

Important Note

It’s important to note that without a court order specifying areas of need in a guardianship and/or conservator order, this is the most restrictive form which takes away all the rights of the individual….unless otherwise stated by the court.

When deciding on whether or not a person requires a guardian, ask yourself the following questions:

- Why does a person need a guardian?
- What are the alternatives?
- What natural supports can be put in place? Family, Friends, Agency support; Special Needs Trust
- What would be the impact if a guardian was not put in place?

Regardless of one’s ability to make decisions for their financial and personal well being they still maintain:

- The right to be treated with dignity and respect.
- The right to express one’s wishes and to be heard.
- The right to make decisions for oneself so far as one is able.
- The right to make mistakes.