Sometimes families need to petition a court to obtain a guardianship or conservatorship for a loved one who has diminished capacity. Because the court would be taking away the fundamental right of self determination—the right to determine where one will live, who one will live with, how one’s money will be managed, and what kind of medical treatment one will receive—this is never an easy decision. In deciding these cases, courts are put in the difficult position of balancing the individual’s rights against ensuring the individual’s safety and well being.
In Idaho, a guardian is a person appointed by the court to take care of another person called the ward. A conservator is a person appointed by the court to manage the financial affairs of the ward. The guardian and conservator may be the same person, or they may be different persons. In some cases, the court may appoint only a guardian or only conservator depending on the circumstances and needs of the ward.
In recent years, guardianships and conservatorships have been undergoing a dramatic revision. Guardians and conservators are required to complete a training course before the court will issue an order appointing them. Courts are using limited guardianships and conservatorships more frequently, giving only the authority the guardian or conservator needs to assist the ward and to maximize the ward’s autonomy. Finally, courts are providing oversight by requiring the guardian and conservator to file annual reports, so that the court can monitor the ward’s finances and status.
Occasionally, children of elderly parents petition for guardianship and conservatorship to get control of their parents’ assets, rather than seeking the best interest of their parents. In such cases, the children should not be appointed guardian or conservator and a more suitable person should be found.
The decision to grant a limited or a full guardianship or conservatorship comes down to the capacity of the proposed ward. Making a comprehensive capacity assessment gives the court the ability to tailor a guardianship or conservatorship to the ward’s specific needs. Next month, we will discuss how capacity assessments are made.