Guardianship and Conservatorship

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What is capacity and why is it important?

Once a person turns 18, they are assumed to have capacity.  Capacity, for legal purposes, means the individual has soundness of mind, an intelligent understanding and ability to make their own informed decisions.  When an individual has capacity, they are their own legal decision maker. 

But what happens when the person no longer has capacity due to illness or disease?  Or what if the individual was born with an intellectual or developmental disability?

Incapacity can occur in a blink of an eye.  While an individual has capacity, it is important for them to nominate a person to be their decision maker, in the event that they are no longer able to advocate for themselves.  This process is can be accomplished through medical and financial powers of attorney. 

Through these documents, you are giving someone the authority to make medical and financial decision on your behalf.  Without these documents, if you were to become incapacitated, no one would be able to legally make treatment d

What happens when we don’t have these documents and the person lacks capacity to execute powers of attorney?

When we do not have these powers of attorney, or the person does not have the capacity to execute them, or even when there are conflicts regarding those documents, we may have to go to court for a Guardianship and Conservatorship.

A Guardianship is similar to a medical power of attorney because it is a court order that allows someone to make medical and placement decisions on behalf of the incapacitated person.

A Conservatorship is similar to a financial power of attorney because it is a court order that allows someone to manage the incapacitated person’s finances and property.

Going to court to obtain this court order can be a daunting experience for any family. Contact our staff if you need assistance with this process.