Guardianship and conservatorship are an option when an adult or child needs someone to look out for his or her interests. While most children have their parents as guardians, adults don’t have guardians except in limited situations where they are unable to make decisions or manage their own affairs. If you find yourself in a situation where a family member needs help managing his life, guardianship and conservatorship may be the answer.
Amen, Gantner & Capriano – Your Estate Matters, L.L.C. provides assistance when physical or mental illness has rendered someone unable to make or communicate his own decisions. We represent families during guardianship and conservatorship proceedings and can help you to take control when someone you care about needs you. Give us a call today at 314-966-8077 to find out more about how we can help in your situation and to get answers to questions including:
- What are guardianship and conservatorship?
- Is guardianship or conservatorship always necessary?
- How can a St. Louis guardianship lawyer help families?
What are Guardianship and Conservatorship?
Guardianship and conservatorship are very simple. Essentially, both guardianship and conservatorship make it possible for someone to act on behalf of a person who is incapacitated. A person may not be able to act on his or her own if he has suffered a physical injury, is seriously ill, or has a mental issue which affects reasoning, judgment, and communication. This person may need a guardian or a conservator.
The incapacitated person is generally called a ward. The guardian or conservator is the person who is looking after the ward. The guardian or conservator is given this authority by the court only after court proceedings to first determine if the ward actually is incapacitated or not. Once it has been determined that the ward is not able to manage his or her own affairs, the court will then determine who would be an appropriate guardian or conservator.
The guardian or conservator who is appointed by the court is going to have the authority to act on behalf of the ward, and has a fiduciary duty to act in the best interests of the ward at all times. There is court oversight of guardians and conservators to ensure that they are fulfilling their role appropriately and making good decisions to benefit the ward.
Is Guardianship or Conservatorship Always Necessary?
Guardianship and conservatorship are necessary if a person is not able to manage his or her own affairs AND if provisions have not been made in advance for asset management and decision-making authority. Ideally, no one would force their family members to go to court for guardianship or conservatorship proceedings. Instead, advanced plans would be made for incapacity. For example, the creation of a living trust allows for a backup trustee to be named. When the trust creator, who served as the primary trustee, becomes incapacitated, the backup trustee can take over immediately. There is no delay in managing assets effectively, and no court must become involved to name someone to manage the assets.
A living trust is not the only way for you to take control over who is going to be in charge of your asset management if you can no longer communicate your desires. It is also a good idea to create a general springing durable power of attorney vesting authority in an agent, just in case you become unable to take action on your own behalf. A general power of attorney gives the agent broad authority to make decisions for you, rather than allowing decisions to be made only on limited issues. A springing power of attorney means it takes effect only in the event of incapacity, and a durable power of attorney means it remains in effect in case of incapacity.
A St. Louis guardianship lawyer knows firsthand how challenging it can be for family members to get guardianship, so using other tools like a power of attorney and a living trust is essential for everyone.
How Can a St. Louis Guardianship Lawyer Help Families?
Amen, Gantner & Capriano – Your Estate Matters, L.L.C. provides assistance with incapacity planning for those who are still of sound mind who want to protect their families from having to go through guardianship and conservatorship proceedings.
We also provide help to the friends and loved ones of people who have become incapacitated and unable to manage their own affairs. When you need a St. Louis guardianship lawyer to help you get the legal authority you need to provide for and protect your loved ones, give us a call at 314-966-8077 or contact us online to learn how we can help.