Courts appoint guardians or conservators when individuals—called wards—are mentally incapacitated to the point where they're unable to care for themselves or their own affairs. This is often the result of a concerned friend or family member petitioning the court for the right to act on behalf of the incapacitated individual. Perhaps the most prominent example of a high-profile conservatorship is that of pop-star Britney Spears. Spears, age 39 in 2021, challenged control of the conservatorship that had been in place since 2008.
It might sound like a relatively easy solution to an unfortunate problem, but guardianship and conservatorship proceedings can be a costly business. Expenses may be incurred even before the guardianship or conservatorship is officially established. For example, you will have to pay court costs for filing the initial petition to determine capacity.
Also, you may have to secure a bond before you are appointed as guardian of property. Expenses can continue into the life of the legal arrangement. They can include nursing home, home care, or assisted living, rent, food, medical care, and home maintenance or repair.
Guardians vs. Conservators
A conservatorship and a guardianship are actually two separate arrangements. A guardian oversees personal issues for the ward, such as healthcare issues and even care, feeding, and supervision, depending on the extent of the ward's incapacity.
A guardian's responsibilities might include some minor financial transactions as well, such as taking care of the ward's daily expenses.
A conservator is appointed to handle the ward's finances. The court will typically appoint a conservator if it appears that the guardian would otherwise have to handle more than $25,000 or so annually on behalf of the ward, but the exact threshold can depend on state law.
Some wards might require both a conservator and a guardian, and a court might appoint two separate people to these roles. In other cases, the same individual might serve in both capacities.
Various expenses must be met even before a person is determined to be incapacitated. Court costs for filing the initial petition to determine capacity will vary by state. If you enlist the help of an attorney in preparing and filing the petition, that professional's services will cost as well.
Not all states charge filing fees for guardianships, although they usually do for conservatorships. For example, it's free to file for guardianship in the District of Columbia, but filing for conservatorship there cost $45 as of 2021.
The court will also appoint an attorney to represent the best interests of the allegedly incapacitated person throughout the conservatorship or guardianship proceedings. This attorney must be paid as well. The ward must have some type of a pre-existing relationship with the lawyer in many states.
Attorney fees are fixed by law in some states, but attorneys are free to charge their standard rates in others, which can be hundreds of dollars an hour.
After appointment, the guardian or conservator must usually seek court approval in many cases before taking specific actions or making certain decisions on behalf of the ward. This, in turn, will lead to attorney's fees for the preparation and filing of the appropriate court petition. Then the costs and fees of any hearings required by the judge must be added on.
The ward's attorney must typically attend the hearing and must be paid for doing so if the judge requires a court hearing for any reason.
Other Professional Fees
Fees for physicians, nurses, or social workers must typically be paid as well. These professionals help to determine whether the ward is indeed incapacitated. The court will appoint them to thoroughly examine the ward, and each will charge a fee for services.
Serving the Paperwork
The incapacitated person's closest living relatives are generally required to receive notice of the proceedings. They must receive a copy of the petition after one is filed with the court to determine capacity.
This can be accomplished by paying a personal process server to hand-deliver a copy to each family member, or the family might be able to accept a copy of the petition by certified mail in some states.
Family members might actually agree to get involved and become parties to the petition to determine capacity.
After a Guardianship or Conservatorship Is Established
Many of the ongoing duties and responsibilities of a guardian or conservator will require the payment of certain fees and costs.
A conservator is usually required to file an annual accounting of how the ward's assets have been bought, sold, invested, and spent. The conservator will either have to personally prepare this report or hire and pay an accountant or attorney to do so.
Some states require that conservators must post bond, a type of insurance policy to protect the ward's estate in the event of any wrongdoing. That costs money, too.
Who Pays for All of This?
Payment of all these expenses can depend on the extent of the ward's personal financial situation. Many costs will be paid from the estate when there's sufficient cash and property to require a conservator—the total cash and value of what the ward owns.
Federal law will step in, at least to cover some expenses, if the ward is relatively destitute and requires a guardian. Congress has established a special guardianship fund to pay certain costs in these circumstances, but attorneys serving the guardian or the ward must make a request to the court for payment from this fund.
Initial attorney fees at the beginning of the proceeding must often be paid personally by the guardian or the conservator, although the court might order that the ward's estate reimburse them.
Some court costs, such as filing fees, might be waived in cases where the ward has limited or no assets or cash, but still other expenses end up being paid by the guardian without reimbursement. Costs associated with medical or healthcare are the exception. Courts will always make every effort possible to make sure these are paid from the ward's own funds or through state or federal benefits.
Social Security Benefits
The Social Security Administration (SSA) allows a portion of a ward's benefits account to be diverted to pay for guardianship proceedings and court-ordered fees under some circumstances.
This provision applies to guardianships, not conservatorships.
The contributions cannot deplete the ward's funds, and they will only be made if the ward's personal needs are already being met. The SSA won't contribute if the petition for guardianship is unsuccessful.
Frequently Asked Questions (FAQs)
How can a conservatorship be ended?
The person in the conservatorship can ask the court to end it. There is then a hearing where a judge can decide to end it, keep it, or ask for more evidence. A judge can decide to change a conservator, diminish his or her authority, or end the conservatorship.
Can you get a guardianship established without an attorney?
That will depend on the state. In Florida, for example, you can forgo the attorney for the designated guardian, although the state still requires the ward to be represented by an attorney.
Is a power-of-attorney the same as a guardianship or conservatorship?
No, it's not the same thing. A power-of-attorney is given from one person to another to enable that person to sign documents and make decisions on the first person's behalf. The person giving the power-of-attorney does not give up their own right to sign documents and make decisions on their own behalf. You don't have to go to court to give or get a power-of-attorney, and it can be revoked at any time without a judge's permission.