Evan H Farr, CELACertified Elder Law Attorney, Farr Law Firm · Certified Elder Law Attorney, Estate Planning Attorney, Asset Protection Trust Expert, Medicaid Planning Expert, Probate Attorney, 4-time Best-Selling Author, Creator of the Living Trust Plus®️ Asset

Guardianship and Conservatorship for Incapacitated Adults

26 Dec 2012 · 3 min

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2:30

In this instructional video, certified elder‑law attorney Evan H. Farr explains the legal framework for guardianship and conservatorship of incapacitated adults. He defines who may be considered incapacitated (developmental disabilities, age‑related or illness‑related cognitive/physical impairments) and clarifies that only a judge can declare incapacity through a court hearing initiated by a petition, usually from a family member. Farr outlines the statutory standards a judge must find: for a guardian, the person must lack the capacity to meet essential health, personal care, safety, or therapeutic needs; for a conservator, the person must be unable to manage property, financial affairs, or provide support for themselves or dependents. He then details the distinct duties of each role—guardians handle personal affairs (care, health, residence, rehabilitation, education, therapy) while conservators manage the estate and finances. Farr emphasizes that these interventions are extreme, often indefinite, and difficult to terminate, so they should be a last resort. He recommends proactive incapacity planning using properly drafted financial and healthcare powers of attorney as preferable alternatives.

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Hey, I'm certified elder law attorney Evan H Farr, and today I'm here to talk to you about guardianship and conservatorship for incapacitated adults. An incapacitated adult could be somebody with a developmental disability or somebody with a cognitive or physical impairment due to age or illness. Only a judge can declare someone to be legally incapacitated, and this is done through a court hearing or someone typically a family member, petitions the court for the appointment of a guardian and conservator. For the appointment of a guardian, a judge must find the person to be incapable of receiving and evaluating information effectively or responding to people, events, or environments to such an extent that the individual lacks the capacity to meet the essential requirements for his health, his personal care, his safety, or his therapeutic needs. For the appointment of a conservator, a judge must find the person to be incapable of managing her own property or her financial affairs or provide for her support or for the support of her legal dependents. Once a guardian is appointed, the guardian is responsible for the personal affairs of the incapacitated person including responsibility for making decisions regarding the person's support, care, health, safety, rehabilitation, education, therapeutic treatment, and place of residence. Once a conservator is appointed, the conservator is responsible for managing the estate and the financial affairs of the incapacitated person. It's important to understand that guardianship and conservatorship are extreme forms of intervention in another person's life because control over personal and financial decisions is transferred to someone else for an indefinite and often permanent period of time. Once established, guardianship and conservatorship can be terminated, but it can be very difficult to terminate. Therefore, guardianship and conservatorship should only be used as a last resort. The alternative to guardianship and conservatorship is proper incapacity planning involving signing a properly prepared financial power of attorney and healthcare power of attorney.