GUARDIAN OR CONSERVATOR?

May 12, 2011 § 15 Comments

What is the difference between an adult guardianship and a conservatorship?  The difference can significantly impact the course that the case takes, as illustrated by the decision in In the Matter of the Guardianship of Frank Lewis, a COA case decided October 5, 2010, that is the subject of this previous post.

I ran across this language from the case of Harvey v. Meador, 459 So.2d 288, 291-92 (Miss. 1984), that provides a general background:

“Initially, it is appropriate to distinguish guardianships from conservatorships.  Guardians may be appointed for minors; incompetent adults; a person of unsound mind; alcoholics or drug addicts; convicts in the penitentiary; persons in the armed forces or merchant swamen reprted as missing; or for veterans; or minor wards of a veteran.

“The guardian is the legally recognized custodian of the person or property of another with prescribed fiduciary duties and responsibilities under court authority and direction.  A ward under guardianship is under a legal disability or is adjudged incompetent.

“In recent decades there has been an increased number of older adults in our society who possess assets in need of protective services provided through guardianships.  But modification of laws have broadened the definition of persons for whom assistance can be afforded by the courts, and such statutes do not restrict such protection only to the adult incompetent or insane.

“Noting that trend in our society, the Mississippi Legislature incorporated into law in 1962 the conservatorship procedure for persons who, by reasons of advanced age, physical incapacity, or mental weakness, were incapable of managing their own estates.

“Thus the Legislature provided a new procedure through conservatorship for supervision of estates of older adults with physical incapacity or mental weakness, without the stigma of legally declaring the person non compos mentis.  This additional procedure was intended to encompass a broader class of people than just the incompetent.

“Therefore, the distinguishing feature of conservatorship from guardianship lies in part in the lack of necessity of an incompetency determination or the existence of a legal disability for its initiation.  After establishment of such protective procedures, the duties, responsibilities and powers of a guardian or conservator are the same.  However, the status of the ward in each arrangement is different.”

How the status of the ward is different under each arrangement is a matter for another post.

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§ 15 Responses to GUARDIAN OR CONSERVATOR?

  • […] Lewis is a name you might recall from a previous post. I posted about his case in a post entitled Guardian or Conservator?, back in 2011. Mr. Lewis was the indoividual for whom an adult guardianship was established in […]

  • Judge Primeaux,

    Thank you for your post distinguishing guardianships from conservatorships. I am an attorney practicing in Texas of counsel with Katten & Benson an elder law firm in Fort Worth. I write a column on elder law issues for a couple of Texas weeklies. I adapt the column to incorporate MS law for the Franklin Advocate, my deceased brother and sister-in-laws paper. The column in MS is for information only. I am not licensed in MS and do not practice there. I often rely upon friend and family lawyers in MS to make certain the information is accurate. Your post was most helpful in my most recent column. Thank you very much.

    Sandra W. Reed

    • Rest assured that you have found a very attorney resource on Mississippi Chancery Practice. I rarely attend a CLE on any issue regarding Chancery practice, especially divorce, where Judge Primeaux’s blog isn’t mentioned as a source for good information. I realize it isn’t primary authority (to the specific definition of the words) outside of the 12th Judicial District, but it helps many attorneys across the state navigate through the tangled webs of the beast. I’m not earwigging the Judge (I don’t regularly practice before Judge Primeaux,) only stating my informed opinion.

  • Ian Determend says:

    Hi, as teens, our mother passed away with no will, therefore her estate went through probate and the local court appointed a guardian over her estate. We’re now all in our 30s with children of our own — and we want to dissolve this guardianship. How do we proceed with this? Particularly if we suspect some level of fraud from the guardian?

    • Larry says:

      This is not a legal advice blog. How to do that depends on the law of your jurisdiction. Any attorney can advise you about how to close a guardianship and hold your guardian accountable, and what will be the effect of the applicable statutes of limitations.

  • Jennifer Jones says:

    My brother, who is 41 years old, had an accident 19 years ago that resulted in a traumatic brain injury. He is mentally incapable of making sound decisions regarding his finances (SSI) and his well-being. He becomes violent toward my mother and I quite frequently and is no longer allowed to live with my mother, who is 60 years old, for her own safety. The mental health workers say he is not committable because he chooses to become violent. There are no long-term facilities available in MS except for nursing homes. His case worker has suggested a conservatorship. Would a conservatorship make my mother legally responsible for his physical well-being or just financially responsible? She cannot handle him physically and we cannot control his actions. In other words, if she provides for him a place to live while serving as his conservator and he decides to leave and become homeless, will she be held legally responsible for his physical well-being?

    • Larry says:

      Due to judicial ethics constraints, I am prohibited from giving any legal advice.

      This is the sort of thing you should talk over with a lawyer, who can advise about what options are available. A consultation should not be an expensive proposition.

      I do not understand why violence per se would make him uncommitable, unless you mean that he is merely violent and not suffering from a mental illness. Mental illness coupled with danger to one’s self or others is a basis to commit.

      • Jennifer Jones says:

        The psychiatrist said that he is not committable because he makes the decision to become violent when he is mad and that he has a “behavioral problem”. The psychiatrist also said the he is “not a harm to himself or others”. I guess hitting someone in the head with a closed fist is harmless…..anyway, I spoke with a lawyer about conservatorship and because the psychiatrist said that he was not committable and was capable of making his own decisions that it would be a long, expensive court battle to get conservatorship. We were left with 2 options: 1) file charges on him for domestic violence and send him to jail or 2) cut all ties with him and hope and pray for his safety. The state doesn’t offer any other assistance or options. It has been a long and emotional week. He has been housed in a “boarding house” that is just horrible-dirty, no air/heat and many other deficits. But, that’s all we had left.

        Thank you for your swift reply.

  • Craig Cunningham says:

    Hi Thanks for your info…my mother applied to be the conservator for my Grandmother (against her will) and even hid the supeona for court from her so she wouldn’t appear. So now she has a bitter hatred for her daughter. Is there a way to have the conservatorship quashed? and how can you have an audit done on the conservatorship?

    Thank You

  • Gerald Jones says:

    I will be committing my wife to psychiatric care tomorrow for the fourth time in three years. She has been committed a total of six times since 2002 with a diagnosis of paranoid schizophrenia/bi-polar conditions. The chancery clerk suggested that I might want to check into conservatorship. I was appointed her guardian during one court hearing. Does this mean that I am already her conservator?

    She has no assets and has not worked enough in her life to be eligible for Social Security benefits. We have attempted several times to obtain some income for her through SSI, but the judgement has been returned that she is not disabled enough to qualify. Would being appointed her guardian or conservator strengthen her case?

    I have gone to court pro se before, handling a previous divorce and successfully defending myself against back child support charges. Is this case (seeking appointment as a conservator) something that I could handle or be allowed to handle in the state of Mississippi?

    Thank you very much for your time.

    • Larry says:

      Not here to give legal advice, but you need to know that every fiduciary (a guardian or conservator is a fiduciary) is required to have an attorney. This arrangement adds a layer of accountability and ethical responsibility for the benefit of the ward.

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