Conservatorships and Guardianships: They’re not Just for Pop IconsFebruary 12, 2021 | Wendy Hoey Sheinberg |
Britney Spears has been making headlines lately, unfortunately not for her music but for her conservatorship. In 2008 Ms. Spears’ father was appointed conservator for her personal and financial decisions. In 2019 a professional fiduciary was appointed to take over Mr. Spears role as co-conservator while Mr. Spears dealt with reported health issues.
According to recent reports, the conservatorship remains in place and Ms. Spears does not want her father to continue as her co-conservator. Recently, she asked the court to replace her father with the professional fiduciary who was appointed in 2019. A hearing was held February 11, 2021, where the judge decided that, for the time being, Ms. Spears’ father and the professional fiduciary would share conservator duties. Additional court dates are scheduled for March and April.
While New York no longer appoints conservators, in 1993 the state replaced its conservator statute with a guardianship statute, which can be a very useful tool. It provides for the appointment of a guardian to make decisions on behalf of someone unable to do so for him or herself. With proper planning, however, a guardianship may be avoided.
What is a guardianship?
A guardian is appointed in an official proceeding to help a person meet their personal needs and/or to help manage their assets. In New York, a person appointed a guardian has not been found to be incompetent but rather that they are found to have incapacities.
How do you get a guardian?
A guardianship begins with a petition. The petition tells the court what problems the person is having and why the only solution is the appointment of a guardian. If the court is satisfied that the petition shows a need, an order is signed setting a date for a hearing.
At the hearing the person seeking the appointment of the guardian (known as a petitioner) must show the court by clear and convincing evidence that the person is likely to suffer harm because: the person is unable to provide for their personal needs and/or manage their property; and the person cannot adequately understand and appreciate the nature and consequences of such inability.
If the petitioner meets their burden and no less-restrictive solutions are available, the court will appoint a guardian.
Once appointed what can the guardian do?
The length of the guardianship and the scope of the guardian’s authority is established by the court in what’s known as an Order and Judgment. The guardian is only given the authority specified in the Order and Judgment; the incapacitated person retains all of the powers not given to their guardian.
The guardianship order can authorize virtually any action that the incapacitated person could take if they were not incapacitated. The guardian can be given the power to make financial decisions for the incapacitated person, including undertaking estate or long-term care planning. However, a guardian may not sign a will for the incapacitated person. The guardian is also prohibited from selling real property without first bringing a special proceeding.
The guardianship order can also authorize the guardian to make personal needs decisions for the incapacitated person. In New York there are limitations on the guardian’s ability to consent to certain treatment and to change the person’s place of residence. For example, in the absence of a subsequent court order a guardian cannot consent to or authorize in any fashion, the administration of psychotropic or antipsychotic drugs, or electroconvulsive therapy. The ability to change the incapacitated person’s residence is generally contingent upon obtaining prior court approval.
Who can be guardian?
A proposed guardian can be a friend or a relative or even a professional. The preference of the alleged incapacitated person is considered in appointing a guardian. The court will ask about any possible conflicts of interest between the proposed guardian and the incapacitated person. The court will generally defer to the incapacitated person’s preference unless they find the proposed guardian to be inappropriate. In cases where a person does not know anyone able or willing to serve as guardian, the court can appoint an independent guardian from a list of approved individuals.
What safeguards are there?
At a bare minimum, a guardian is required to file an initial report within 90 days of receiving their commission to act. Also, the guardian must file an annual report and account. The annual report and account detail the financial transactions taken, the value of the guardianship estate and information about the medical and personal needs of the incapacitated person. The Court also appoints a court examiner to review the guardian’s reports. The court can remove a guardian who fails to file the report and account. Additionally, if the court examiner becomes aware of neglect or inappropriate behavior by the guardian, the court examiner can bring that to the attention to the court and if necessary, the guardian could be removed.
Many times, the court will also require the guardian to file a surety bond. The bond basically provides insurance to make the incapacitated person whole in the event of financial impropriety by the guardian.
How does a guardianship end?
If the need for the guardianship ends, a petition is submitted to the court explaining why the guardianship should be terminated. The court can then sign an order setting a date for a hearing (if necessary). At the hearing, the petitioner and the formerly incapacitated person explain to the court why the guardianship is no longer appropriate. If someone objects to ending the guardianship, they must prove to the court why the guardianship should continue.
How do you avoid a guardianship?
The need for a guardian can be greatly reduced if a person has properly planned for incapacity or cognitive decline. Proper planning would involve healthcare directives and financial directives. Additionally, the use of a revocable trust can assist in providing for ongoing asset management in event of cognitive decline.
If you know of someone who could benefit from having a legal guardian and you are willing to serve in that capacity, we encourage you to call your Trusts & Estates attorney.
- Wendy Hoey Sheinberg