What Is a Conservatorship?
A conservatorship is a legal proceeding in which a court appoints someone to manage the financial affairs of an individual who is unable to manage their finances on their own. In Hawaii, the court has jurisdiction over establishing conservatorships for both minors and incapacitated adults.
In the case of conservatorships for minors, the court will appoint a conservator if it determines that a minor has money or property requiring management, has business affairs that are at risk due to the minor’s age, or needs protection of funds the minor uses for support or education. The court will appoint a conservator, for example, if a minor is named a beneficiary on a family members life insurance policy, and that member passes away.
Alternatively, a conservatorship can be established for an adult when there is evidence that they are unable to manage their property and finances.
What Is a Guardianship?
Guardianships are a legal relationship between either an incapacitated person or a minor and their court-appointed guardian. A guardian can make legal and health care decisions in all or part of the other person’s life. Some incapacitated individuals are able to make decisions in some areas, but require assistance in others. In this case, a court may give the guardian specific powers to only assist where the person needs it the most.
A person is determined to need guardianship when they lack capacity to make responsible legal, financial, or health care decisions. It’s important to note that courts will not grant guardianship simply because someone is making poor decisions. Instead, the person must lack the capacity to make a sound decision in the first place. And, disabilities or illnesses in and of themselves are not usually enough to declare incompetence.
For more information regarding guardianship for minors, please see our planning for children information here.
Responsibilities of a Conservator or Guardian
Once appointed, guardians and conservators are expected to consistently act in the incapacitated person or minor’s best interest.
However, because this responsibility has an opportunity for abuse, courts hold guardians and conservators accountable for their actions with reporting requirements. Guardians and Conservators will be required to file reports on the individual’s status, finances, and even seek court approval for certain financial transactions. In other cases, guardians and conservators may be required to provide the court with an annual report on the individual’s status. If at any point the court determines that the individual is not being properly cared for, the guardian or conservator may be removed or replaced.
A court can also restrict the responsibilities of a guardian or conservator. Since some people with a disability have the ability to do many things on their own, a judge will only give the limited conservator power to do things the limited conservatee cannot do without help. For example, a limited conservator’s duties may include:
- Deciding where the limited conservatee will live (NOT in a locked facility)
- Signing a contract for the limited conservatee
- Giving or withholding consent for most medical treatment for the limited conservatee (NOT sterilization and certain other procedures)
- Giving or withholding consent to the limited conservatee’s marriage or domestic partnership
- Giving or withholding consent over the conservatee’s divorce or annulment
- Managing the limited conservatee’s financial affairs (for a limited conservator of the estate)
Conservatorships and guardianships are available to families seeking a way to care for a loved one who is unable to handle some or all of their affairs without assistance and can be established regardless of the individual’s age. Our firm works with families seeking guidance for establishing a conservatorship or guardianship to help their loved ones, from their children to their aging parents.
If someone you love is likely to need a conservatorship or guardianship in the near future, we are ready to guide you through your options so you can be prepared and ready when the day comes. Contact us today to learn more about guardianships and conservatorships.