After a successful morning in court, I decided to talk a bit about guardianship and conservatorships. I go a bit more in-depth below the video.

We do a lot of good in my practice. A big part of my success centers on my belief that whatever we do, we do it for the right reasons. If I agree to represent you in a divorce it won’t be because you paid me but because I believe that I can help you not just in the courtroom but also help you improve your life and your kids lives. Similarly, in a custody case, I will only represent a parent if I believe I can help that child have a better life, which means that is what my client must want too. We don’t do revenge and we don’t do petty at the Pavlov Law Firm.

However, some of the things we do are specifically designed to help those in need the best interest standard for custody of children shares this mandate, though people’s motivations vary). Guardianships and conservatorships are an example of an area of law that is designed solely to help those in need. Without diving too deeply into the specifics of the law, suffice it to say that the court’s sole focus in any guardianship or conservatorship matter is the protection of a vulnerable person, whether that person be a now grown-up disabled child or an elderly parent dealing with dementia or other health issues.

Here is a common fact pattern to illustrate how this works: A client comes to see me because their elderly father is suffering from dementia and needs help paying bills and arranging medical treatment. The client’s initial thought is to have a Power of Attorney drawn up, but, obviously, the father’s capacity would render the Power of Attorney suspect at a minimum. Further, the power of attorney does not help set the parameters of the client’s acceptable powers (POA’s are broad, which is part of the danger) and it can be revoked. Further, if the client has brothers or sisters, particularly if they lean a bit self-involved, self-righteous, and/or selfish, operating under a POA could lead to very complicated allegations. I also find that ethics can become quite complicated for a person with a POA over their elderly parents. All the work that goes in to helping someone with such needs can be overwhelming and a generous gesture from the parent can quickly be interpreted as overreach or taking advantage by the adult child.

The guardianship and conservatorship solves these issues. The court’s oversight and the process for establishing the guardianship and conservatorship forces transparency. Ultimately, there will be no question over the correctness of the guardianship or conservatorship as the burden of proof is quite high, if easily satisfied based on obvious infirmities. Moreover, the conservator is a fiduciary and therefore holds major responsibilities to the Ward and must act in their best interest, something that is a lot easier to do when you have a black robe reviewing everything. The funds will be properly placed into a conservatorship account and the conservator will have to do an accounting each year. Anyone approved by the court will be able to review the accounting and, of course, the judge will review it. Further, the court will also set budgets when appropriate and approve major expenditures and sales of assets, while providing the conservator enough flexibility to hopefully handle the ward’s affairs without much judicial oversight.. So if the house is sold, well, the court will have had to approve it, but the day to day things will not until the accounting. Any question or concern from any interested party can be brought to the court and transparency is essential so no one should fear these questions. And since this is all pretty much set in stone, most folks have very little interaction with the court after the conservatorship and guardianship is established other than the accountings because the court is not there to make these things harder. The court is there to help the Ward. If there are problems, bring it out in open court and let the black robe make the hard calls.

This does not mean that Guardianship and Conservatorships are easy things. It is a major burden to act as someone’s Guardian and Conservator. It is a selfless thing to do and most people do not get paid for doing it, though there are provisions for pay in some situations and for reimbursement of expenditures made on the Ward’s behalf, including, potentially, the establishment of the guardianship and conservatorship. Further, the court’s feelings about what is best for the Ward may differ from the client’s, but that possibility is inherent in any matter in the chancery court that focuses on best interest. Still, if you are working truly for the best interest of the Ward, the court and the client will ultimately end up on the same page (with good lawyering).