Guardian

A guardian is appointed for a ward when the Probate Court determines that one of the following circumstances exists:

q        the ward is a minor (less than 18 years old);

q        the ward is mentally ill, as evidenced by the opinion of a qualified physician;

q        the ward is mentally retarded, as evidenced by the opinion of a qualified clinical team;

q        the ward suffers from physical incapacity or illness;

q       the ward, because of excessive drinking, gambling and the like, wastes or lessens his estate, commonly called a "spendthrift."

In each of the foregoing situations, except in the case of minors, it must appear to the Probate Court that the ward is incapacitated to such a degree that he is unable to make informed decisions regarding his personal and financial affairs.

Conservator

A conservator is appointed for a ward when the Probate Court determines that one of the following circumstances exists:

q        the ward suffers from mental weakness;

q        the ward is mentally retarded;

q        the ward suffers from physical incapacity.

In each of the foregoing situations it must appear to the Probate Court that the ward is incapacitated to such a degree that he is unable to make informed decisions regarding his personal and financial affairs.

What are the duties of a guardian and a conservator?

Guardians and conservators have many duties in common and are subject to supervision of the Probate Court. Some of these duties are set forth below. The list is not complete, but rather a general indication of the scope of duties.

q        Pay the ward's debts

q        Represent the ward in all lawsuits

q        Control and manage the ward's property

q        Invest the ward's funds

q        Collect funds due the ward

q        Support the ward and his family from the ward's funds

q        Sell, lease or mortgage the ward's property, with the approval of the Probate Court.

 A guardian, unlike a conservator, has custody of the person of his ward. Also, a guardian must consent to such matters as medical treatment and where the ward will reside.

Who may be a guardian or conservator?

The law gives no preference to any particular class of persons or relatives. Any person who is proper and fit is eligible. The paramount consideration of the Probate Court is the welfare of the ward and the appropriateness of the appointment to meet the ward's needs.

Fees of a guardian or conservator

The reasonableness of fees is ultimately determined by the court. A court usually will take into account the size of the estate, the responsibilities placed upon the guardian or conservator and the amount of work involved. Corporate guardians and conservators, such as banks and trust companies, base their fees upon a percentage of income and principal each year. Banks publish fee schedules, which are available to the public.

The lawyer's role

Acting as a guardian or conservator requires a knowledge of the law and its application. A lawyer can be helpful in many ways. He or she will assist in having the guardian or conservator appointed in the preparation of the documents required to manage the ward's estate, in choosing accountants and other useful professionals and in reviewing their performance in order to insure that their duties are being properly carried out.