Individuals who are legally incapacitated cannot make necessary decisions for themselves. For example, an elder may be found non-responsive at home and rushed to the hospital by ambulance. If the emergency doctor cannot get the elder to communicate, the hospital will need to have somebody else make decisions. One method is to have the probate court appoint a guardian. The guardian then makes the personal decisions for the individual such as what medical treatment will be authorized, who will administer the treatment, and what will be the hospital discharge care plans.

An incapacitated person may have property, such as a home and bank accounts, that need to be protected and managed. The probate court may appoint a conservator to be responsible for the property. The conservator receives the property, makes the financial decisions, pays the bills and handles the property under supervision of the court.

The first step is filing a petition to appoint a guardian or a conservator with the probate court. This may be done by a social worker, family member or an attorney hired by a family member. The petition is a form available at the county probate court. It must be correctly completed and filed at the probate court with the applicable fees and documentation.

The filing fee is $150 for guardian or conservator. A public hearing will be scheduled within four to eight weeks, unless there is an emergency in which case the court can appoint a temporary guardian before the hearing. The emergency guardian will serve until the public hearing. An emergency means that the person's health or finances are at risk for immediate harm, for example consent to emergency surgery may be needed. Emergency petitions require an additional $20 fee.

Prior to the court hearing the court will appoint a guardian ad litem, known as a "GAL." This is typically an attorney who will speak to the petitioner, the alleged incapacitated person, make any other needed inquiry to complete the investigation and complete and submit a report to the court. The GAL will report whether the petition should be approved and whether the proposed ward objects or agrees. The fee for the guardian ad litem ranges from $350 to $500 in uncontested matters.

On the hearing date the judge will decide whether a guardian or conservator should be appointed and, if so, who that person should be. The spouse or child is most often named, but the court may appoint an attorney or an agency if there is good reason. The alleged legally incapacitated person may agree or object. If there is any contest on the need for a guardian or conservator, the judge will hold a hearing and receive evidence from witnesses.

Once the court appoints a guardian or conservator it issues letters of authority. These spell out the authority given. For example, authority to sell a house is not given without court approval of a particular sale. The guardian and conservator are subject to the supervision of the probate court and must file reports annually. The conservator has the additional duty of filing a complete inventory and then a full accounting of money and property received and disbursed. One person may handle both roles. The appointment of a full guardian or conservator removes the legal right of the patient to make decisions.

There are alternatives to probate guardian and conservator. The most commonly used are agents serving under powers of attorney. A properly designated patient advocate can make end-of-life medical treatment decisions. A revocable living trust may also dispense with the need for a conservator since a trustee manages that property. A Social Security representative payee may be named to receive and disburse Social Security funds.

Article by Jim Schuster, Certified Elder Law Attorney