Probate Code
Each state’s laws enumerate certain duties and limitations for guardians and conservators. These laws tend to be lengthy and detailed. For a comprehensive understanding of them, including relevant exceptions and requirements, the statutes themselves should be reviewed. Additionally, state laws must be read in conjunction with the order of appointment of a guardian or conservator by the judge which may further limit the guardian’s powers and responsibilities.
GUARDIANS:
A guardian for an adult is a fiduciary and owes the highest duty of good faith and care to the person under a guardianship. The guardian shall not substitute his or her moral or religious values, opinions, or philosophical beliefs for those of the person under a guardianship. Except as otherwise limited by the court, a guardian for an adult shall make decisions regarding the support, care, education, health, and welfare of the adult subject to guardianship to the extent necessitated by the adult’s limitations.
A guardian for an adult shall promote the self-determination of the adult and, to the extent reasonably feasible, encourage the adult to participate in decisions, act on the adult’s own behalf, and develop or regain the capacity to manage the adult’s personal affairs. In furtherance of this duty, the guardian shall:
- Become or remain personally acquainted with the adult and maintain sufficient contact with the adult, including through regular visitation, to know the adult’s abilities, limitations, needs, opportunities, and physical and mental health;
- To the extent reasonably feasible, identify the values and preferences of the adult and involve the adult in decisions affecting the adult, including decisions about the adult’s care, dwelling, activities, or social interactions; and
- Make reasonable efforts to identify and facilitate supportive relationships and services for the adult
- A guardian for an adult at all times shall exercise reasonable care, diligence, and prudence when acting on behalf of or making decisions for the adult. In furtherance of this duty, the guardian shall:
- Take reasonable care of the personal effects, pets, and service or support animals of the adult and bring a proceeding for a conservatorship or protective arrangement instead of conservatorship if necessary to protect the adult’s property;
- Expend funds and other property of the adult received by the guardian for the adult’s current needs for support, care, education, health, and welfare;
- Conserve any funds and other property of the adult not already expended for the adult’s future needs, but if a conservator has been appointed for the adult, pay the funds and other property at least quarterly to the conservator to be conserved for the adult’s future needs; and
- Monitor the quality of services, including long-term care services, provided to the adult.
CONSERVATORS:
A conservator is a fiduciary and has duties of prudence and loyalty to the individual subject to conservatorship.
A conservator shall promote the self-determination of the individual subject to conservatorship and, to the extent feasible, encourage the individual to participate in decisions, act on the individual’s own behalf, and develop or regain the capacity to manage the individual’s personal affairs.
In making a decision for an individual subject to conservatorship, the conservator shall make the decision the conservator reasonably believes the individual would make if able, unless doing so would fail to preserve the resources needed to maintain the individual’s well-being and lifestyle or otherwise unreasonably harm or endanger the welfare or personal or financial interests of the individual. To determine the decision the individual would make if able, the conservator shall consider the individual’s prior or current directions, preferences, opinions, values, and actions, to the extent actually known or reasonably ascertainable by the conservator.
If a conservator cannot make a decision because the conservator does not know and cannot reasonably determine the decision the individual subject to conservatorship probably would make if able, or the conservator reasonably believes the decision the individual would make would fail to preserve resources needed to maintain the individual’s well-being and lifestyle or otherwise unreasonably harm or endanger the welfare or personal or financial interests of the individual, the conservator shall act in accordance with the best interests of the individual. In determining the best interests of the individual, the conservator shall consider:
(a) Information received from professionals and persons that demonstrate sufficient interest in the welfare of the individual;
(b) Other information the conservator believes the individual would have considered if the individual were able to act; and
(c) Other factors a reasonable person in the circumstances of the individual would consider, including consequences for others.
Except when inconsistent with the conservator’s duties, a conservator shall invest and manage the conservatorship estate as a prudent investor would, by considering:
(a) The circumstances of the individual subject to conservatorship and the conservatorship estate;
(b) General economic conditions;
(c) The possible effect of inflation or deflation;
(d) The expected tax consequences of an investment decision or strategy;
(e) The role of each investment or course of action in relation to the conservatorship estate as a whole;
(f) The expected total return from income and appreciation of capital;
(g) The need for liquidity, regularity of income, and preservation or appreciation of capital; and
(h) The special relationship or value, if any, of specific property to the individual subject to conservatorship.
The propriety of a conservator’s investment and management of the conservatorship estate is determined in light of the facts and circumstances existing when the conservator decides or acts and not by hindsight.