Question: My parents never believed in lawyers, so neither could be convinced to sign wills, much less durable powers of attorney for finances or health. Since my mother died early this year at age 77, my father has become visibly more fragile; I think he can no longer take care of himself at home or make his own decisions. He is falling, not eating, and his memory is very poor, but he continues to refuse assistance. When I checked into my options with a lawyer, I was told that I could bring court proceedings to be appointed as Dad’s guardian and conservator, or that social services could possibly take custody of him. No real choice, but if I go to court, why do I have to bring two actions rather than just one?

Answer: Our law is patterned after England’s “common law”, where guardians were appointed to care for those who could not care for themselves due to irreversible birth-related disabilities, while conservators were selected to handle decisions for those who, although mentally ill, might one day be able to care for themselves. In both situations, the individual’s assets were taken by the Crown, which then took on the responsibility for caring for them. In the case of guardianships, the Crown kept the assets, while in conservatorships, the assets could be returned if and when the individual became able to manage for himself.

Today, this dual system continues, but the law recognizes other categories of individuals who need assistance, including adults who, because of diminished capacity, are unable to care for themselves and are unlikely to improve; physically disabled individuals who, despite having mental capacity, are unable to physically take care of themselves and their assets; and minors who, although healthy, are unable to handle their assets until they are emancipated.

A guardian is generally a person – or in some instances, an agency -- appointed by a court in a special proceeding to make life-related decisions for an incapacitated individual about health care, living conditions, and the like. This person, however, generally has no authority to manage finances. On the other hand, a conservator can be a person or entity – such as a bank trust department – who is appointed by a court to manage an incapacitated person’s assets. Often, these court actions are brought simultaneously, and the same person is appointed in both capacities. In a few states, the guardian handles both health care and financial duties.

The standard for appointment of conservators and guardians in most states is whether the individual is physically or mentally incapacitated to the extent that he/she cannot make or communicate responsible decisions regarding finances and/or health care. Unlike the medical community, which chooses to use the word “incompetence,” the legal community uses “incapacity”. The protected person is sometimes referred to as a “ward.”


In bringing these proceedings, a guardian ad litem is appointed for the alleged incapacitated person, and the court appoints examiners, one of whom is a physician, to corroborate incapacity. Unless urgent circumstances are presented to the Court, these proceedings require that notice be given to all interested persons before a guardian or conservator can be appointed.

The sometimes inordinate cost of guardianship and conservatorship proceedings can be avoided if individuals sign durable powers of attorney for health care and finances while they have the capacity to do so. Accordingly, fear of attorneys should be weighed against the trauma of becoming an involuntary ward of the Court.