Guardianship and Conservatorship

February 27, 2003

We often think that the worst thing that could happen is the death of our partner, but several letters I received recently helped me realize that it can be even more devastating when we have to deal with long-term care of a partner who is in the end-stages of a terminal illness, has Alzheimer's, or is suffering from a severe mental illness. In these circumstances, medical and financial powers of attorney and other advance directives may not be sufficient (or even available) and the only remedy is guardianship. Guardianship in the context of a same-sex couple can be trickier, particularly if the couple faces hostile blood relatives.

Guardianship and conservatorship defined

A guardian is an adult who can legally manage the financial and/or personal affairs of another individual, either a child or an adult, who is unable to manage their affairs by them self. In some states, such as California, the term conservatorship is used when referring to a guardianship over an adult, and the guardian is referred to as the conservator. I'll use the term guardian here because that's what I'm used to but, for all intents and purposes, the only differences are the terminology. I'll also only address the issue of guardianship over an adult who was previously able to care for himself or herself.

There are really three kinds of guardianship: guardianship over the estate, guardianship over the person, and guardian over the estate and person. In the first form, a person (the guardian or conservator) is given legal authority to manage the finances, real estate and even the business of another person (the ward or conservatee). In the second form, the guardian manages the personal (non-financial) and medical affairs for the ward, such as food, clothing, shelter and medical care. The third form merges the two sets of responsibilities in the same guardian.

When should you choose one form or another? It will depend upon the situation. Some people, particularly when they get older, are no longer able to manage their financial affairs but are still competent to make decisions about personal and health care. In that case, guardianship over the estate is appropriate. If a person if no longer competent to handle their personal or medical care, then guardianship over the person and the estate is probably most appropriate. However, it may be better to have separate guardians. For example, a person who might otherwise be a good choice for a guardian over a person may be a terrible financial manager and, thus, would not be a good choice as a guardian over the estate.

Same-sex partners as guardians

Heterosexual couples have a legal preferment when it comes to guardianship, in that the law favors the appointment of the husband or wife as guardian over their incompetent spouse, unless the court finds otherwise. Same-sex couples have no such rights and the gay or lesbian spouse has less standing than a distant family member. However, judges are not legally bound to appoint someone guardian simply because they are a blood relative, but they are required to act in the best interest of the proposed ward. As a result, a judge may find that this best interest requirement is met by appointing the gay or lesbian partner.

Guardianship proceedings

In all cases, the guardian must be appointed by a court, usually in response to a petition by the proposed guardian. The proposed guardian files the petition with an appropriate court (usually the probate court) and must send copies of the petition to all of the proposed ward's family members. It is not uncommon for multiple parties to file separate petitions. All proposed guardians must be legally qualified; for example, they must be at least 18 years old and may not be a creditor of the proposed ward. Although virtually anyone can petition to be appointed guardian, the plain fact is that current law favors blood relatives.

Once the petition is filed, the court will investigate the qualifications of the proposed guardian or guardians using a court-appointed investigator. The court will also appoint an advocate for the proposed ward, sometimes called an ad litem, since the guardianship is considered an adversarial proceeding. There is a presumption that the proposed ward is competent and it is up to the proposed guardian to show that the guardianship is needed. The proposed guardian is responsible for all fees, including their own legal fees, the legal fees for the proposed ward's attorney ad litem, but the fees can often be recovered from the proposed ward's estate if the guardianship is granted. If the ward is without funds, the court can sometimes authorize reimbursement of the ad litem from a state fund for that purpose. After all documents are filed and the investigator files a report with the court, a hearing will be held at which the ward is usually required to be present. The proposed guardian will also need to demonstrate that they can post a bond, particularly if there is a financial estate. The amount of this bond will be set by the judge.

Guardianship can be, and often is, opposed by the proposed ward, particularly if he or she is mentally aware that the proceeding is taking place. The judge, with the assistance of an investigator, and advice from the ad litem will need to make a determination as to whether the proposed ward is competent to manage his or her own affairs. Guardianship can also be opposed by other parties, who must demonstrate that they have some reasonable connection (called standing) to the proposed ward.

Guardianship powers

Once a guardian is appointed, he or she serves until the ward dies or is found to be competent, or until the guardian resigns, dies, or is replaced by the court. Once appointed, a guardian is required to manage the ward's estate only for the benefit of the ward. The guardian will be required to file a report on a regular basis, such as annually. Any powers of attorney will be revoked by the guardianship. The guardian's power to act on the ward's behalf is subject to state law and any conditions the judge may impose. Since the guardian is considered a fiduciary, he or she is personally answerable for any decisions made.

Guardianship for same-sex couples

One way gay couples can control the choice of guardian is by executing a declaration of guardianship in which they list the person or persons who are preferred guardians and those persons who are not to be named as guardian. This document has two potential effects. First, if you name a preferred guardian, the judge is likely to favor that person, although they are not required to do so. More importantly, however, is the second effect — in most states, if you name someone who is not to be named your guardian, the court may not appoint that person even if they are otherwise qualified. Gay partners should always work with a competent attorney in these proceedings, particularly if there are blood relatives around, since these proceedings tend to favor legal relationships over unmarried partners.

Alternatives to Guardianship

The preferred alternative to guardianship are valid powers of attorney, executed at a time when the individual is competent. However, human nature being what it is, a couple may not have executed the appropriate paper work prior to one partner becoming incompetent. In that situation, guardianship is the only alternative.

Conclusion

Guardianship proceedings may be exactly what you need if your partner becomes incompetent. But because they divest the proposed ward of his or her right to control their own affairs, they are considered to be a drastic remedy and should be considered a remedy of last resort.