Guardianship, Conservatorship, and Power of Attorney's OH MY!

**** Disclaimer: I am not nor have I ever been a Lawyer. I don't even play one on TV. This is just my research and should not be taken as legal advice. Only a Lawyer certified by the bar in your state can give legal advice. Again this is for informative purposes only.*******

As our children get older we start to think about their future and what they will do. How are we going to prepare them for the world (really should have been doing this all along not wait till 18 just sayin)? How do we protect them from the big bad world? Lets face it there are people in the world when given a chance will take advantage of people. Some families will have to go the legal route others will not, it all depends on each families situation.

When looking at a person with special needs we need to ask can they make their own decisions? Are they impulsive? Is it easy to take advantage of them? Can they live on their own? What assistance if any do they need? Remember just because you answer these questions one way at one point in time does not mean that the answers wont change. Not every family needs to have lawyers and courts become involved. 

Roger will be 13 in a couple of months, which means he will be an adult in 5 years. 5 years that's it. We started talking about what needs to be done. There is no doubt that he can and will go to college, work, and live on his own. But.... He may need some assistance at first (which really don't all kids). The assistance he may need is reminding him to pay the rent and his bills. Don't worry he will remember to feed himself. 

When talking to a friend we started talking about Guardianship, conservatorship, and Power of Attorney's (POA). Theres a lot to take in and look at. This is just a brief description of what I have found out. The information I have used comes from different legal sites for different states. Regulations may vary by court.

Guardianship:  A guardianship establishes a relationship between the Guardian and the ward similar to a parent child relationship. The Guardian undertakes duties and responsibilities to the ward guided by the order of the Probate Court. A guardianship for a developmentally disabled person should be undertaken only to promote and protect the well-being of the ward and encourage the development of maximum self-reliance for the ward. The guardianship should be limited by the Court based on the developmentally disabled individual’s actual mental and adaptive limitations.  from: http://washtenawtrialcourt.org/probate/guardianship/dev_disability

What does a gaurdian do?

The guardian makes all decisions about the care and treatment of the person under guardianship, who is referred to as a ward. For example, the guardian may decide whether to consent to surgery, or to a change of placement, such as from an institution to a group home. The guardian often attends the IEP or IHP meetings and decides whether to consent to the plan of services. The guardian may also decide on the best way to protect the legal rights of the ward. For instance, if the guardian were dissatisfied with the services an agency provides to the ward, the guardian would have authority to challenge that decision.
The guardian may also make all decisions about the property of the person under guardianship, unless that property is in trust or consists of social security benefits. In these cases it is the trustee and representative payee respectively who would decide what to do with this property. A guardian does not assume financial responsibility for the ward. (http://www.hinkle1.com/understanding-guardianship-for-adults-with-developmental-disabilities/)


What if my child needs a guardian for some decisions, but not others?
Both New Jersey and Pennsylvania have passed legislation allowing for limited guardianship.
This allows a guardian to make decisions in some, but not all, areas of an individual’s life. For instance, parents may be appointed limited guardians of their son with respect to financial and medical issues. In such a case, personal decisions such as where to work or live will remain with the individual. As a result, limited guardianship can take on many forms and can be tailored to match an individual’s strengths and weaknesses While many people with very severe cognitive disabilities may still require a “full” guardian, a limited guardian may be appropriate for someone who is “higher functioning” or who has a very “mild” cognitive impairment. Experienced attorneys and psychologists can assist families in deciding which form of guardianship may be appropriate. (http://www.hinkle1.com/understanding-guardianship-for-adults-with-developmental-disabilities/)

 Conservatorship: I know your brain just went to Britney Spears, and yes her father had conservatorship over her for a while, he still might I don't know. " A conservatorship can be set up after a judge decides that a person (called a "conservatee") cannot take care of him/herself or his/her finances. A judge will choose another person or organization (called the "conservator") to be in charge of the conservatee's care or finances, or both. A conservator can be a family member, friend, or professional.

What is a conservator of the estate?
When the court appoints you to be the conservator of an estate, you will:

1. manage the conservatee's finances;
2. protect the conservatee's income and property;
3. make a list of everything in the estate;
4. make a plan to make sure the conservatee's needs are met;
5. make sure the conservatee's bills are paid;
6. invest the conservatee's money;
7. make sure the conservatee gets all the benefits he or she is eligible for;
8. make sure the conservatee's taxes are filed and paid on time;
9. keep exact financial records; and
10. make regular reports of the financial accounts to the court and other interested persons.

There are different types of conservatorships as well
.A limited conservatorship is set up for adults with developmental disabilities who cannot fully care for themselves, but who do not need the higher level of care or help given under a general conservatorship. In general, a limited conservator has less authority than a general conservator. A limited conservator has authority to do only those things that are granted at the time of appointment. The judge decides which responsibilities the conservatee will keep and which ones the conservator will have. Now think Britney she had some mental issues, but lived alone, still worked, still made money someone just looked over her to make sure she made good decisions.
  All information on conservatorship is from http://www.sdcourt.ca.gov/portal/page?_pageid=55,1529941&_dad=portal&_schema=PORTAL 

Power of Attorney's: These are the most restrictive and many people have them. My husband holds POA on me if something were to happen and I was unable of making decisions. You must understand what you are signing to give POA to another person.


A power of attorney is a document that allows you to appoint a person or organization to handle your affairs while you're unavailable or unable to do so. The person or organization you appoint is referred to as an "Attorney-in-Fact" or "Agent."

General Power of Attorney - authorizes your Agent to act on your behalf in a variety of different situations.

Special Power of Attorney - authorizes your Agent to act on your behalf in specific situations only.

Health Care Power of Attorney - allows you to appoint someone to make health care decisions for you if you're incapacitated.

"Durable" Power of Attorney -The general, special and health care powers of attorney can all be made "durable" by adding certain text to the document. This means that the document will remain in effect or take effect if you become mentally incompetent.

Revocation of Power of Attorney - allows you to revoke a power of attorney document.

Special Power of Attorney
A special power of attorney allows you to give only specific powers to the person or organization you appoint as your "Agent." For example, you could authorize someone to sell a car or a house for you.
Many people use the special power of attorney to authorize their Agent to do one or several of the following:

• Handle banking transactions
• Enter safety deposit boxes
• Handle transactions involving U.S. securities
• Collect debts
• Sell real estate
• Mortgage real estate
• Manage real estate
• Sell personal property
• Borrow money
• Manage business interests
• Handle government issues
• Make financial decisions
• Make estate planning decisions, including gifts

A special power of attorney is often used to allow your Agent to handle specific situations for you when you are unavailable or unable to do so. For example, you may be traveling outside the state or country, or you may be unable to handle a specific situation because of other commitments, or health reasons.

Mental Competence
In order for a power of attorney document to be valid, you must be mentally competent when you sign it. This means that you must understand the powers that you are granting to your Agent and the implications of having someone else make decisions for you. If there is any question about your mental competence, it's a good idea to have a physician evaluate you and state in writing that you are competent.

If you have signed a "durable" power of attorney document, it will either remain in effect or go into effect if you become mentally incompetent. But how will your mental competence be determined? This is something that you can spell out in the document. For example, you can name a physician whom you wish to make the determination. Or, you can require that two licensed physicians agree on your mental capacity.
Even if your document doesn't set specific requirements, it's still likely that your Agent will have to get a doctor's written confirmation of your incompetence. Most businesses and organizations won't allow your Agent to act on your behalf without it. In some cases, a court may be required to decide the issue using generally accepted standards.

How does a doctor decide if you're mentally competent? In general, the doctor will consider whether you have an understanding of the subject area covered by the Power of Attorney, whether you understand the implications and importance of the matters involved, and whether you can make and communicate reasoned choices. (http://www.lectlaw.com/filesh/qfl04.htm)