Aging: Taking Care of Business

Chapter 7 - Becoming a Guardian or Conservation

On this page:


 

Purpose of a Guardianship or Conservatorship

The purpose of a Guardianship or Conservatorship is to ensure that continuing care is provided for individuals who are unable to take care of themselves or their property because of incapacity. A Guardianship or Conservatorship is generally only considered after other alternatives have been explored. Whether a person needs a Guardian or Conservator is decided by a Probate Court.

A Guardianship or Conservatorship differs from the Durable Power of Attorney for Finances and Health Care Advance Directives because in the latter an older person agrees to have someone else take care of business and personal affairs and shares decision-making powers with that person. In the former, the Probate Court makes the decision about whether a Guardian or Conservator is needed and who the Guardian or Conservator should be. The Court may also appoint a Guardian or Conservator over the objection of the incapacitated person. The Court may also appoint a Guardian or Conservator with full powers or it may appoint a Limited Guardian or Conservator depending on what the Court feels is appropriate.

[back to top]

Reasons for Becoming Guardian or Conservator

When is it necessary to apply for Guardianship or Conservatorship for an incapacitated friend or relative? You may need to do so when:

  • The incapacitated person when competent never executed an advance directive such as a Power of Attorney for Health Care, a DPOA for Finances, a Joint Bank Account or Trust; or
  • The incapacitated person did enter into one of these arrangements but the arrangements turn out to be inadequate. For example, the person executed a Power of Attorney for Health Care which grants you authority to make health care decisions but which does not grant you authority to make financial decisions.

[back to top]

What is a Guardian?

A Guardian is a person who is appointed by the Probate Court to make decisions for someone who is incapacitated. The incapacitated person is called a "Ward." A Guardian has the authority to make decisions about the Ward's person, such as:

  • Where the Ward will live.
  • Whether the Ward will go into a facility such as a nursing or boarding home.
  • What medical treatment the Ward will receive.

When the Ward has little money or property the Guardian has authority to manage the Ward’s money and property. If the Ward receives a check from Social Security, the Veterans Administration or another federal agency, the Guardian will also need to apply to become Representative Payee, as described in Chapter 6. However, the Guardian does not have power to sell real estate. The Guardian also does not have the power to write a Will for the Ward.

If the Ward owns real estate or has a substantial amount of money or property which he or she cannot manage effectively, the Judge may appoint a Conservator in addition to a Guardian or the Judge may appoint one person to do the job of both the Guardian and the Conservator.

[back to top]

Powers and Duties of a Full Guardian

If there are no limitations placed on the Guardian by the Court, then the Guardian is considered a full Guardian. If you are appointed full Guardian for a Ward, you will have most of the powers and duties that a parent has toward a minor child, including the following:

  • You are entitled to have custody of the Ward. You may have him or her live with you; however, you are not required to have the Ward live with you.
  • You may decide where the Ward will live, either in or out of state.
  • You are entitled to put the Ward in a hospital, nursing home, boarding home or other institution. However, you are not allowed to commit the Ward against his or her will to a mental health institution (such as Riverview Psychiatric Center or Dorothea Dix Psychiatric Center) without going through the District Court procedure for involuntary commitment.
  • You must see to it that the Ward is cared for and kept comfortable. You may do this yourself or make sure that others are available to care for the Ward.
  • You must see to it that the Ward receives “appropriate training and education.” (While this part of the law is primarily for younger Wards, it is important for older adults to receive stimulation as well through social and recreational activities.)
  • You must take care of the Ward's clothing, furniture, vehicles and other personal effects.
  • You must make decisions about the Ward's medical and personal care, seeing that he or she receives appropriate care from doctors, nurses, dentists and mental health professionals. In the decisions you make, you must follow any directions given or wishes expressed by the Ward when he or she was still of sound mind. This includes directions and wishes the Ward talked about but never wrote down.
  • You may not revoke a Ward’s Advance Health Care Directive unless the Court expressly authorizes the revocation. In addition, if the Ward executed a Power of Attorney for Health Care while competent and named someone else as Agent, the health care decisions of the Agent under the Power of Attorney for Health Care take precedence over those of a Guardian absent a court order.
  • The Court may require that you report on the Ward’s condition.

In a Limited Guardianship, you will not have all the powers and duties listed above. You will have only the powers and duties which the Court specifically gives you. Limited Guardianship is discussed later in this Chapter.

If no Conservator has been appointed for the Ward, you may also have limited responsibility for the Ward's money and property:

  • You must use the Ward’s money for his support and care.
  • You must save whatever money is left over for the Ward's future needs.
  • You must make sure that those who are obligated to give financial support to the Ward do so. This may mean applying for support to a former employer, the Social Security Administration, the Veterans Administration, payers of private disability and pension benefits, insurance companies, Medicare, MaineCare or others.
  • If the Ward receives regular payments either from Social Security, the Veterans Administration or other federal agency, you will need to follow the federal agency's procedures to become a Representative Payee, allowing you to receive the check and use it for the Ward's needs.

If as Guardian you are providing room and board for the Ward, or if your spouse, parent, or child is providing the room and board, you must obtain the Probate Court’s approval before you can charge the Ward for the cost of that room and board.

As Guardian you are not allowed to sell real estate belonging to the Ward or make any financial transactions other than spending money for the Ward's needs and keeping leftover amounts in bank accounts. If you discover that the Ward has a significant amount of money or property in excess of his or her needs, you should ask the Probate Court if you or someone else should be appointed as Conservator.

You are not allowed to make a Will for the Ward. Only a Will made by the Ward while still competent will be valid.

[back to top]

The Ward's Loss of Rights

A Guardian has the same power over a Ward that a parent has over a child under the age of 18. However, the Guardian does not have to use his or her own money to support the Ward and cannot be made to pay others for damage caused by the Ward unless the Guardian was reckless or negligent.

A person who becomes a Ward loses the following rights:

  • A Ward under full Guardianship cannot make choices about his or her own life, such as where to live, whether to get medical treatment, how to spend money and whether to marry.
  • The Ward may have no choice about whether a Guardian is appointed. Even if the Ward objects, the Court may still decide to appoint a Guardian if it appears that the Ward needs one.
  • The Ward is not allowed to revoke a Guardianship without requesting a Court hearing. The Ward must then show the Court that the Guardianship is not needed or that the Guardian is doing a poor job.

[back to top]

What is a Conservator?

A Conservator is a person appointed by the Probate Court to protect and manage the money and property of any person who is unable to manage his or her own property because of a mental or physical illness or disability. The person under Conservatorship is called a “Protected Person.” The Conservator can do such things as:

  • Pay the Protected Person's bills.
  • Sell, mortgage, rent out or manage the person’s real estate.
  • Invest the person’s money.

The Conservator is not allowed to make decisions about the Protected Person's personal life unless he or she is also appointed as the Guardian. ; Nor can the Conservator write a Will for the Protected Person.

[back to top]

Powers and Duties of a Conservator

If you are appointed Conservator, you will have the following powers and duties:

  • You must make money available for the care and support of the Protected Person. The Court may require either that you make the payments or, if a separate Guardian has been appointed, that you give funds to the Guardian so that he or she can make the payments.
  • If you are the Conservator and a separate Guardian has been appointed, you must listen to the Guardian's recommendations as to what the Ward's needs are and how money should be spent for the Ward’s care and support.
  • You may have to spend money for the care and support of the Protected Person's dependents: his or her spouse and any child under 18 years of age. You may also have to spend money for the care and support of members of the Protected Person’s household who are not legally dependent but are unable to support themselves: for example, disabled relatives who have lived with the Protected Person for a long time.
  • As Conservator, you are not allowed to make a Will for the Protected Person.

As Conservator, you must manage and invest excess property and money so as to provide a reasonable return. In doing so, you have broad powers as long as you act in the best interests of the Protected Person:

  • You may invest the Protected Person's money and property.
  • You may operate the Protected Person’s business.
  • You may buy and sell property either for cash or on credit.
  • You may maintain, change or repair buildings belonging to the Protected Person.
  • You may rent out property belonging to the Protected Person.
  • You may buy and sell stocks, bonds and securities.
  • You may buy insurance to protect the Protected Person’s property.
  • You may bring a claim or law suit against anyone who owes the Protected Person money.
  • If someone sues the Protected Person, you may hire a lawyer to defend or settle the law suit.
  • You may borrow money for the Protected Person.
  • You must file tax returns and pay the Protected Person’s taxes from his or her funds.
  • You may hire people to help you do your job as Conservator, such as lawyers, accountants and investment advisors, and pay them from the Protected Person’s funds.
  • You may make gifts to charity and to the Protected Person's friends and relatives, if he or she clearly would have made such gifts if still competent and if the gifts are no more than 20 percent of the Protected Person's annual income. You must seek the Court’s permission before making larger gifts and should ask before making gifts of any size to yourself or members of your family.

[back to top]

Limited Guardianship or Conservatorship

Sometimes a Ward or Protected Person is incapacitated only in some areas of her life yet can still take care of herself in other areas. The law requires that the Probate Court help the Ward or Protected Person stay as self-reliant as possible. To accomplish this, the Judge may give the Guardian or Conservator only certain limited powers and leave the incapacitated person still in charge of other aspects of her life. This is called Limited Guardianship and Limited Conservatorship.

Under a Limited Guardianship, the Guardian has the power only to make certain decisions for the Ward. An example of a Limited Guardianship is where a Guardian has the authority to make health care decisions but not decisions about the Ward’s living arrangements. The Judge might do this where a Ward with mental illness has developed a life-threatening medical condition for which he is refusing care.  At the same time, the Ward is managing well in other areas of his life and taking care of other needs.  The appointment of a Guardian with limited powers over the Ward's medical treatment alone will get the Ward the necessary treatment without taking away his other rights.

Under a Limited Conservatorship, the Conservator would have control over some but not all of the incapacitated person’s money and property. An example of a Limited Conservatorship is the appointment of a Conservator who is to protect and manage the money and property of the Protected Person but who is not given the authority to sell the house of the Protected Person. This may be because there is an expectation that the Protected Person, although perhaps not living there at the time, may at some point in the future return to his or her home.

[back to top]

Single Transaction Authority and Appointment of Special Conservator

The most limited form of Conservatorship is called Single Transaction Authority. The Court directs or approves a single act or transaction which is needed in order for the Protected Person to get appropriate care and protection.

Single Transactions may include:

  • The payment of a bill, such as a mortgage payment or large debt to prevent foreclosure on a house or loss of a major asset.
  • Setting aside certain money or property to keep the Protected Person from spending, selling or giving it all away.
  • The sale, lease or mortgage of property to provide funds for the Protected Person’s support.
  • Entering into a contract for care and services for the Protected Person.
  • The creation of a Trust to support the Protected Person.

The Probate Court will either carry out the transaction itself or appoint a friend or relative as the Special Conservator to do it. Either way, there is no Conservator with continuing power over the Protected Person.

[back to top]

Managing Money and Property as a Fiduciary

In handling a person’s money or property as either a Guardian or Conservator, you are acting as a fiduciary. This means that you are required to use the money or property for the benefit of the Ward or Protected Person in a way that he or she would want it used. You may not use the money or property of the Ward or Protected Person for your own benefit. If you do so, you could be sued or prosecuted criminally.

[back to top]

Procedures for Becoming a Guardian or Conservator

In order to become a Guardian or Conservator, you must file a petition and other papers in the Probate Court in the county where the person lives. Every county has a Probate Court. You must also attend a hearing before the Probate Judge for that county. Before appointing you as Guardian or Conservator, the Judge must be persuaded that:

  • The person is incapacitated;
  • The person needs someone to make personal decisions for him or her and/or manage his or her affairs; and
  • You will be a suitable Guardian or Conservator.

Several steps are involved in becoming a Guardian or Conservator. They are intended to provide the Court with information and protect the rights of everyone involved.

[back to top]

Filing the Petition and Other Papers

Anyone who is concerned about the incapacitated person or the estate may file a petition and other papers asking the Court to appoint a Guardian or Conservator. Forms are available from the Register and clerks of Probate. When you file the petition, you may nominate yourself to serve as the Guardian or Conservator or you may nominate someone else.

You will also need to provide the Court with these other papers in addition to the petition:

  • A Guardianship or Conservatorship Plan, stating how the person’s medical, social, financial and other needs will be met or how the estate will be managed.
  • A Physician’s or Psychologist’s Report providing a diagnosis and a statement regarding the person’s capacity to make personal and medical decisions or manage financial affairs.
  • An Acceptance of Appointment signed by the proposed Guardian or Conservator.

[back to top]

Notice to the Individual and Interested Parties

The individual for whom someone is seeking a Guardianship or Conservatorship must receive a copy of the petition and a notice of the hearing in Probate Court at least 14 days before the hearing. The law requires that the court visitor or a deputy sheriff “serve” these papers on that individual. The law also requires that “interested parties” receive these materials by certified mail. These interested parties include relatives, caregivers and payers of benefits.

There is a Probate Court in each county. Some will send out the notices. In others, the person who filed the petition for Guardianship or Conservatorship will be expected to send out the notices. You should check with the Court to see how the notices should be handled.

[back to top]

Who May Serve as Guardian or Conservator?

In appointing a Guardian or Conservator, the Judge will look for a person who knows the individual well, who will make good decisions for him or her, and who will spend the time needed to do a good job. The Court prefers to appoint close relatives or someone chosen by the individual while he or she was still competent. The law does not allow an owner, administrator or employee of the nursing home or other facility in which the person is living to serve as Guardian or Conservator unless he or she is a relative.

In some cases, there are incapacitated people who have no relatives or friends available to serve as Guardian or Conservator. In these cases, the Court may appoint a State agency (either the Department of Health and Human Services’ Office of Elder Services or the Office of Cognitive and Physical Disability Services) as the person’s Guardian or Conservator. If this happens, a caseworker from one of these agencies assumes the same responsibilities as a friend or relative appointed Guardian or Conservator.

[back to top]

Appointment of a Visitor, Guardian ad Litem or Attorney

After you file the petition, the Judge will usually appoint a neutral person called a Visitor or Guardian ad Litem to investigate the situation and to make a report to the Court. The Visitor or Guardian ad Litem will do the following:

  • Visit the individual's home as well as the place he or she will live if a Guardian is appointed.
  • Explain to the individual in plain language what the petition for Guardianship or Conservatorship involves.
  • Talk to the individual and find out how he or she thinks and feels about having a Guardian or Conservator.
  • Find out whether the individual wants to attend the hearing and be represented by an attorney.
  • Interview the proposed Guardian or Conservator

A Visitor is usually a person trained in social work, nursing or related field. A Guardian ad Litem is usually an attorney. Ad Litem means "for the law suit." The Guardian ad Litem will assist the individual during the Court proceeding but will not be involved any longer once the proceeding is over.

If the individual makes it clear that he or she does not want a Guardian or Conservator, the Judge will appoint an attorney if the person does not already have one to represent that individual in opposing the Guardianship or Conservatorship.

[back to top]

The Hearing

If the individual does not object to having a Guardian, the hearing before the Probate Judge is likely to be informal. You and the others present tell the Judge what you feel the best arrangement will be for your incapacitated friend or relative. The Judge will also want to hear from that individual. He or she should be encouraged to attend the hearing and be involved in the process to the extent that he or she is able to do so.

If the individual or someone else opposes the Guardianship or Conservatorship, or if there is any kind of disagreement, the hearing will be more formal. The individual at issue has the right to attend the hearing, to see and hear all of the evidence regarding his or her condition, to be represented by a lawyer (even if the he or she does not have money to pay for one), to present evidence to the Judge and to cross-examine witnesses or have the lawyer do so.

The individual or his or her attorney may request a closed hearing to protect that individual’s privacy. This means that the only people allowed to attend will be the individual, the petitioner, the proposed Guardian or Conservator and their attorneys. Members of the public and observers will not be allowed in the courtroom.

[back to top]

The Judge's Order

The Judge may issue a decision at the end of the hearing or he or she may choose to review the evidence and issue a decision later. The Judge will either appoint a Guardian or Conservator or decide not to appoint anyone if it appears that the older person can still take care of his or her own affairs.

[back to top]

Appointment of Temporary Guardian or Conservator in an Emergency

Sometimes an emergency will exist and you may want to be appointed immediately as Temporary Guardian or Temporary Conservator to protect a friend or relative: for example, in a case where the older person is being physically abused, refuses to be treated for a life-threatening illness or is having money or property stolen from him. In such a situation you may not want to wait the several weeks to several months that it usually takes to become Guardian or Conservator. Instead, you need to act immediately to get the individual out of danger. Except in limited circumstances, you must notify the incapacitated person and certain other family members prior to filing the petition. Prior notice is not required if the giving of notice places the individual at substantial risk of abuse, neglect or exploitation.

You must make a special request for Temporary Guardianship or Conservatorship on the form provided by the Court. You will have to file an affidavit (a statement, witnessed by a notary public) explaining the facts of the emergency and showing the appointment is necessary to prevent serious, immediate and irreparable harm to the health or financial interests of the individual. The Court may also require that you provide a doctor’s or psychologist’s statement that the person is incapacitated. A hearing will be scheduled promptly at which you will have to appear. If the Judge is convinced of the seriousness and urgency of the situation, you will be appointed Temporary Guardian or Temporary Conservator. You will be allowed to take action to address the emergency:  for example, by removing your friend or relative from the custody of the person abusing her, by authorizing lifesaving medical treatment or preventing access to the incapacitated person’s finances.

As Temporary Guardian or Temporary Conservator, you are limited by your appointment in what you can do and you can serve no longer than six months without going through the procedure to become a Guardian or Conservator with ongoing powers. Also, a Court Visitor will visit the incapacitated person shortly after you are appointed to explain the proceeding. If the incapacitated person does not want you to serve as his or her Guardian or Conservator, he or she can request that a hearing be held within 40 days.

[back to top]

Consulting an Attorney

It may be helpful to have the assistance of an attorney in the Guardianship or Conservatorship process, especially in the following circumstances:

  • If the individual or someone else opposes the Guardianship or Conservatorship and is represented by an attorney; or
  • If the individual has a complex estate.

If the individual has money in his or her estate, you may seek the permission of the Court to have the attorneys’ fees paid from the estate at the end of the proceeding as long as they are reasonable. You may have to pay from your own pocket and get reimbursed from the estate later on unless your attorney agrees to wait until the end of the proceeding for payment. Either way, you should discuss fee arrangements, including the attorney’s hourly fee, the number of hours estimated to be spent on your case and any other arrangements for payment, before hiring an attorney.

If you decide not to hire an attorney, you can still ask the Register and clerks of Probate for help in filling out the papers and meeting all the legal requirements. The Register and the clerks, however, will not give you legal advice.

[back to top]

Filing of Inventory by a Conservator

If you are appointed Conservator, you must give the Court an inventory of all the Protected Person's money and property within 90 days after being appointed. The inventory should include the location, value and description of each item. Appraisers may have to be consulted. The Conservator also must provide a copy of the inventory to the Protected Person and to the Protected Person's Guardian if a separate Guardian has been appointed.

As Conservator you will be required to report to the Probate Judge on the estate of the Protected Person when the Conservatorship ends. In addition, private conservators appointed after January 1, 2008 are required to file an account annually with the Court for approval. If the Conservator is a spouse or domestic partner of the Protected Person, the Court may waive this requirement for good cause. The Judge may also require you to report to the Court from time to time; therefore, you should always keep complete and accurate records.

[back to top]

Costs and Fees in Guardianship and Conservatorship

There are a number of costs involved in filing for Guardianship or Conservatorship. These costs include:

  • Fees to the Probate Court for filing the petition.
  • Fees charged by the doctor or psychologist for evaluating the individual’s capacity, writing the report required by the Court and testifying.
  • Fees charged by the attorney whom you hired.
  • The fees paid to the Visitor or Guardian ad Litem.
  • If the individual opposes the Guardianship or Conservatorship, the fees charged by his or her attorney

If the fees and costs are reasonable, you may make a request to the court that they be paid out of the estate of the Ward or Protected Person at the end of the proceeding. If the court allows reimbursement you should take no more than what you actually spent and have records of the expenditures you made, including receipts and canceled checks. You should also record these payments in the running account you keep of the Ward's or Protected Person’s finances. You may have to pay many of these costs yourself and get reimbursed from the funds of the Ward or Protected Person at the end of the proceeding.

If you are a Guardian and a separate Conservator has been appointed, you should ask the Conservator to reimburse you for these costs.

If there is not enough money in the estate to pay the fees of the Visitor, the Guardian ad Litem or the court-appointed attorney for the Ward or Protected Person, the fees may be paid from state or county funds. Public funds will not pay your own attorney’s fees or the filing fee.

[back to top]

Your Financial Liability as Guardian or Conservator

By the time you are appointed Guardian or Conservator for an older relative, he or she may not have enough money to pay the bills or be self-supporting. If the older person is in a nursing home, his or her funds are likely to run out at some point.

As Guardian or Conservator, your duty is to pay for the Ward's or Protected Person’s support and expenses only out of the Ward's or Protected Person’s own money and property. You are not obligated to use any of your own money or property to pay off his or her debts even if his or her money runs out. Creditors of the Ward or of the Protected Person will not be able to sue you personally or attach or seize your property in order to get what they are owed.

In the case of medical, nursing home, home health and similar costs, the MaineCare program may cover the costs after your relative runs out of money. Other benefit programs such as Supplemental Security Income (SSI), food stamps and heat assistance should also be explored.

A word of caution for Conservators: whenever you enter into a transaction for your older relative you must make it clear that you are acting as Conservator on behalf of another person rather than on you own behalf. If you lead the other party to believe that you are acting on your own behalf, the other party will be able to hold you personally liable. When signing papers, you should sign "Ethel Jones, as Conservator for Jane Doe."

[back to top]

Obtaining a Conservator's Bond or Surety

If you have been appointed Conservator for an estate of $25,000 or more, the Court will require you to furnish a bond to prevent the Protected Person from losing his or her money or property. The amount of the bond is based on the value of the money and property under your control. It is up to the Court to decide whether a bond will be required for estates less than $25,000.

A bond is a form of insurance for which you pay a premium using money from the Protected Person’s estate. The bonding company promises to pay the Protected Person's estate if money or property is lost through wrongdoing, neglect or mismanagement.

[back to top]

Getting Paid for Activities as Guardian or Conservator

In acting as Guardian or Conservator, you may incur expenses. You may have to travel which can involve travel expenses or time off from work. You are entitled to reasonable compensation for the expenses you incur and for the time you spend acting as Guardian or Conservator. "Reasonable" means not excessive. The law does not allow you to make a living or make a profit from these activities. Nor will you be allowed to take payment for those visits to the Ward or Protected Person which you would make anyway as a concerned friend or family member.

If you are the Conservator for your older relative or friend, or a Guardian with control over a small estate, you must get the Judge's approval before you pay yourself for your time, services and expenses. The Judge will decide if what you request is reasonable. If you are a Guardian and there is a separate person appointed as Conservator, you should go to the Conservator and request payment.

Examples of activities for which Probate Courts have allowed reasonable compensation are: repairs to the house of the Ward or Protected Person, moving furniture and other effects of the Ward or Protected Person and time spent trying to sell the property of the Ward or Protected Person, especially when the Guardian or Conservator has had to take time off from a job to do the work.

In order to do your job as Guardian or Conservator well, you will probably have to consult professionals such as attorneys, bankers, investment advisors and physicians. You may pay these professionals fees out of the Ward's or Protected Person’s money as long as the payments are reasonable.

[back to top]

Reports to Probate Court

As Guardian or Conservator you will be required to report back to the Probate Judge on the condition of the Ward or Protected Person as well as on the estate when the Guardianship or Conservatorship ends. This will happen under the following circumstances:

  • The Ward or Protected Person dies;
  • The Ward or Protected Person is again able to manage his or her own life and finances and no longer needs a Guardian or Conservator; or
  • You resign or are removed as Guardian or Conservator.

The Judge may also require you to report from time to time while you are serving as Guardian or Conservator; therefore, you should always keep complete and accurate records of what you do on his or her behalf. You should keep copies of all papers relating to the Ward or Protected Person: medical records, insurance forms, canceled checks, deposit slips, receipts and bills of sale, deeds to land and buildings and expense receipts.

[back to top]

Arranging for Someone Else to Take Over as Guardian or Conservator

It is always possible that something could happen to you and that temporarily there would be no one available to take care of business for your Ward or Protected Person. You should plan for this possibility by writing a Durable Power of Attorney and by making provisions in a Will. In these documents, you will name someone to take over as Guardian or Conservator if you become incapacitated or die.

If you are going to be temporarily unavailable, such as when you go on vacation, you should write a Power of Attorney in which you name another relative or friend as the person to act as Guardian or Conservator in your absence. You should give a copy to the person named in the Power of Attorney and, if your Ward or Protected Person does not live with you, to the nursing home or to the person with whom he or she lives.

[back to top]

Resigning as Guardian or Conservator

At some point you may decide that you no longer have the time or energy to continue to take care of business for your Ward or Protected Person. You may be in poor health yourself, your job may become more demanding, or you may be moving away. Whatever the reason, you must get the Judge’s permission to withdraw as Guardian or Conservator by filing a Petition to Terminate the Guardianship or Conservatorship. If you have been Conservator, you will be required to file an Account of the Protected Person’s finances and property and how they have been spent on the form provided by the Court. Until the Judge has issued an order allowing you to withdraw and appointing a new Guardian or Conservator, you must continue to fulfill your duties as Guardian or Conservator.

Sometimes incapacitated people under Guardianship or Conservatorship recover and are able once again to take care of their own business. If this happens, you should do the following:

  • Have the Ward or Protected Person see a doctor or psychologist for the purpose of getting a new assessment of his or her capacity.
  • Petition the Probate Court for a limitation or termination of the Guardianship or Conservatorship. The Ward or Protected Person may still need some help, in which case you will continue to be involved under a more limited Guardianship or Conservatorship.

When the Judge does issue an order allowing you to withdraw you must give the Ward's or Protected Person’s money, property, papers and other items in your possession to the new Guardian or Conservator or to the Ward or Protected Person.

[back to top]

Removal of a Guardian or Conservator

A Guardian or Conservator who fails to act in the best interests of the Ward or Protected Person can be removed by the Probate Court. The Ward or Protected Person, his or her relatives or anyone interested the welfare of that person

The Judge may appoint a Visitor to investigate the situation and write a report. A hearing is held, similar to the hearing in which the Guardian or Conservator was originally appointed. Notice must be given to all the people concerned and all parties are entitled to be represented by lawyers to present evidence and to cross-examine witnesses.

[back to top]

Death of the Ward or Protected Person

If the Ward or Protected Person dies, you should notify the Probate Court immediately. If he or she left a Will, you must deliver it to the Court. You may apply to become that person’s Personal Representative if one is not named in the Will. A Personal Representative (also called an “executor” or “administrator”) is a person, usually a relative of the deceased, who handles the administration of the Will and the distribution of money and property. For more information on the responsibilities of the Personal Representative, consult an attorney or the Register of Probate.

[back to top]