Guardianship and Conservatorship
One of the most difficult decisions that a family can face revolves around the necessity of obtaining guardianship of an adult loved one. Ideally, estate planning documents would have been previously established that addressed the issues of mental or physical incapacitation but, far too often, that did not happen. In that case, when someone has become incapable of making their own financial or health care decisions, a Guardianship may be the best solution.
What is a Guardianship?
Guardianship, or Living Probate, is an essential legal process allowing one person (the guardian) to make decisions for someone who has become mentally or physically incapacitated (the ward). The court must declare the ward incompetent before appointing a guardian. Often, Adult Guardianships occur after a lengthy period of dealing with Alzheimer’s or a similar issue. However, guardianships can also become necessary when someone is severely injured, such as remaining comatose after an accident. In such an event, unless the injured person had previously signed medical directives and a durable power of attorney, the court would appoint a guardian to make health care and financial decisions on the injured person’s behalf.
Guardianships become necessary because health care decisions will be required, bills must be paid, and property must be managed so it does not lose value over time.
There are two types of guardianship in Wisconsin:
- Guardianship of the Estate refers to the management of someone’s financial affairs;
- Guardianship of the Person refers to lifestyle and healthcare decisions, such as admission to a nursing home or permission for medical treatment.
The Difference Between Guardianships and Conservatorships
Conservatorships do not require mental incompetency, unlike guardianships. An individual chooses a conservator to handle their financial affairs, but they do not give up the right to make important decisions such as voting, marrying, signing contracts or getting a driver’s license. In a guardianship, the court may or may not appoint the guardian that the ward wishes, depending on what the court considers as being in the ward’s best interests.
Special Needs Guardianship
In Wisconsin, anyone over 18 is legally considered to be an adult. Parents are no longer able to have access to their son’s or daughter’s medical records or make important decisions on their behalf, regardless of how severely disabled their son or daughter may be. In order for the parents to continue to be able to make legal decisions for their child, it’s necessary for a parent to be appointed by the court as a guardian.