How to Choose a Guardian/Conservator for Yourself
What will happen if you cannot make decisions for yourself? Every day we make hundreds of decisions from what to eat for breakfast to where we go on vacation. With each passing day, there are more choices to be made. But the day may come when you are unable make competent decisions for yourself.
When it comes to estate planning, both the term “guardian” and “conservator” tend to come up often. At times there may be confusion about what a guardian does as opposed to what a conservator does. The two roles are similar but distinct. And, as you will soon see, Maryland and the District of Columbia do not help this confusion.
A guardian is a court-appointed fiduciary responsible for ensuring that the personal, day-to-day needs of a child or incapacitated adult are taken care of. The guardian of an incapacitated adult is usually in charge of making sure that the incapacitated adult gets adequate medical treatment and that the incapacitated adult’s caregivers are doing an adequate job of meeting his or her personal needs. The District of Columbia uses guardian, and Maryland uses guardian of the person.
Conservator/Guardian of the Property
A conservator (DC), or guardian of the property (Maryland), on the other hand, is a court-appointed fiduciary who is responsible for managing the financial affairs of a child or an incapacitated adult. The conservator takes care of real estate, manages bank accounts, and handles investments. His or her duties can range from paying bills to buying and selling stocks and bonds to managing rental property on behalf of the ward.
For those of you who have had your estate planning recently done or reviewed, you probably discussed and executed a Financial Power of Attorney. For those of you on the fence about having your estate planning completed, this is another valuable reason why it is so crucial. With this document, you are authorizing someone to handle your financial affairs (sign checks in your name, open up a bank account, enter into contracts on your behalf, etc.). This can be very beneficial because if you are no longer able to do these things for yourself, someone else can immediately step in and do them for you. However, you may run into situations in which third parties are going to want the person to have more authority than just a signed Financial Power of Attorney. In these cases, they are going to require you have a Conservator/Guardian of the Property appointed.
A Conservator/Guardian of the Property is essentially a court-appointed and court-“controlled” agent. They have the court’s authority to handle your financial affairs on your behalf if you cannot. In many jurisdictions, the court will give priority to an individual who has been named as agent under a Financial Power of Attorney, making it incredibly important that you have one prepared. If you do not have one, each state has a law that lists the order in which people are appointed. In some cases, you could end up having someone handling your affairs that you would have never wanted, like an estranged parent or sibling. A financial power of attorney lets you share your wishes with the court.
Choosing the Right Person
To ensure that you are taken care of when you can no longer take care of yourself, it is important that you choose the right person. When analyzing the pool of candidates for either type guardian, consider the following questions:
Does he or she have the time to act as your guardian? Often, those individuals who are the most organized and knowledgeable to help out are also the most heavily scheduled individuals and may not be able to step in. But, it is also said, if you want something done, give it to a busy person.
Does he or she live close by? Even in our digital world, some issues may take multiple steps, in-person interactions to resolve, or require frequent original signatures. If the individual you are looking to appoint lives far away, he or she may not be able to fully carry out their duties.
Does he or she have the skill set needed? When acting as a guardian, it is crucial that the individual is organized, thorough, and can communicate clearly. A person who is disorganized or quick tempered may not be a good advocate for you.
Do co-guardians make sense? Often no one person is the perfect person to fulfill your wishes. There may need to be co-guardians due to complimentary skills, availability, resources, and abilities.
While we all want to retain as much autonomy as possible, there may come a time when we need someone to act for us. Selecting the right individual will ensure you are taken care of according to your wishes. If you have any questions or would like to discuss who you should appoint for this role, contact us at 301.892.2713. We are here to help.
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