Guardianships and Conservatorships
We want our loved ones to enjoy the freedom that comes from living in this great country. We want them to be able to make decisions for themselves and live the life they desire to live. Unfortunately, due to age or other circumstances, our loved ones may lack the mental capacity to make decisions regarding their personal care and finances. In many cases the powers of attorneys executed prior to the individual’s decline in mental capacity may allow the attorneys-in-fact to care for their loved one. On the other hand, if the individual did not execute powers of attorney prior to the decline in mental capacity, a guardianship and conservatorship may be the only option to ensure a loved one receives the care they require.
Obtaining guardianship and conservatorship over an individual requires the commencement of a court action. The person seeking appointment as guardian or conservator must file an application for appointment with the court then go through the necessary procedural steps prior to appointment. The appointment of a guardian and conservator over an adult is a serious undertaking and Idaho law requires court involvement to ensure the adult receives the care they require without stripping the individual of the ability to make decisions they may remain capable of making.Guardianship
An individual appointed as guardian over another (“protected person”) generally has control to make decisions regarding the protected person’s care, residence, and relationships. A guardian may decide where the protected person lives, who can make contact with the protected person, the type of medical treatment they will receive, and can generally be in charge of the protected person’s life. The scope of the guardian’s role is continually reevaluated to ensure the protected person is able to continue to make decisions of which he/she is capable.
Any interested person may seek guardianship over a loved one. In most cases, a family member or friend will seek appointment as guardian over an incapacitated loved one in situations where no other person has authority to act on behalf of the incapacitated person (i.e., through a power of attorney). Another common scenario in which a person will seek appointment as guardian is when the incapacitated person becomes uncooperative or tends to make decisions which pose a danger to themselves.
A person seeking appointment as guardian over another must file the proper request in state court. The Idaho guardianship statutes set forth the information required to be provided to the court in the request. Additionally, all persons who may have an interest in the care of the incapacitated person must receive notice of the request for appointment.
An appointed guardian has the legal obligation to provide an accounting to the guardianship court on an annual basis. Failure to timely provide the accounting may result in the termination of the guardian’s role. Seeking guardianship of a loved one is a serious undertaking and should be done with competent legal advice.Conservatorship
Conservatorship is necessary when a person is unable to manage his/her own financial affairs. Similar to guardianship, a person seeking to act as conservator over another’s financial affairs must file an application for appointment with a court. Conservatorship actions are typically commenced simultaneously with guardianships.
Any interested person may seek conservatorship over a loved one’s finances. The appointed conservator must provide the court with an accounting on a regular basis to ensure the protected person’s funds are properly utilized.
A conservator does not have authority to make decisions regarding the protected person’s physical welfare. A conservator’s role is limited to oversight of the protected person’s financial affairs.
The Racine Olson Elder Law attorneys can help you determine if guardianship and conservatorship are the best methods for assisting your loved ones. We are available to discuss your options and answer your questions at an initial free consultation. Call us toll free at 877-232-6101 or 208-232-6101 for a free consultation with the Racine Olson team of Elder Law attorneys in Idaho. You can also email us directly at firstname.lastname@example.org.