Guardians and Conservators: their selection can be crucial

Guardians and Conservators: their selection can be crucial. Minor children who lose their parents, and adults who need help both may be dependent.

It’s not really a very well-known topic but a guardian and conservator are important in a couple situations where people need someone else to care for them.

Children

First is a minor child. In the absence of a parent, and while a child is young, they don’t have legal capacity … they cannot go contract with a dentist for services, they can’t consent to their own field trip at school, they can’t buy insurance … all sorts of things that they can’t sign, as a child. That child needs a guardian and conservator

Adults with impairment

Another group of people are adults with an impairment who cannot handle their own affairs. Sometimes that can be due to a life-long condition or it can be someone who starts losing capacity, losing their memory, suffers from dementia or Alzheimer’s later in life. They may need someone to help handle their affairs. So you have heard the term guardian and you have heard of a conservator. What are those two things?

It is a pretty common sense division of duties. A Guardian is someone who cares for your person or your health, all sorts of care decisions. A Conservator cares for your finances and your property. So it is a pretty obvious division there. As a parent of the child, you would do both of these things, but if they’re different people (the Guardian and the Conservator), the duties may be divided among them.

State Law

Kansas law gives you the right to nominate Your Guardian conservator for your children in your will or your trust. You can make nominations, so that if something happens to you and your spouse, for instance, and your child or children were still minors,  you will have nominated guardian and conservator for your children.

And under Kansas statute, as long as the court finds that the child is in need of a guardian conservator, the statute says the court SHALL appoint your nominee(s). So your your nominee in your estate plan has great weight, as it should.

Guardians and Conservators may help an “adult with an impairment.” That could be someone has a condition their entire life such that maybe they need some help with their affairs. It can also be someone who has capacity, but a little later in life maybe they begin slipping. So, while they are competent, they can nominate someone as guardian and/or conservator in their power of attorney document, and the court is to – by law – prioritize that person as a guardian conservator for the adult with the need.

That’s a little circular because you hopefully should not need the appointment of a guardian conservator when you have a good Durable Power of Attorney document in place. But that’s kind of a safe backup. I often, in a power attorney document, name a nominee as a guardian and conservator, and that power of attorney document should take care of things.

Example – how does it work?

So, let’s say I sign a power of attorney document and I name Bob to be what is called my “attorney in fact” (a person who has delegated powers in my power of attorney). If that’s thorough and covers business and healthcare decisions, the durable power of attorney document itself should carry the day. Just by signing that (while I have full capacity) with the various and  broad enumerated powers, I pretty much take care of things. There should not be a situation where I need a power attorney later in life.

So, those are some ins and outs for minors or adults needing a guardian and conservator. I hope this clears things up for you. It can be a bit complex, but it should work out for you.

For instance, in a Trust you might name a nominee as the guardian and conservator for your child(ren) in case something would happen to you (and your spouse) at a young age. Then your trust is also going to provide funds for your children. So the nomination and the assets of the Trust kind of work hand-in-hand: there will be someone in your trust who can provide funds and someone (perhaps the same person, perhaps not) in the person of a guardian and conservator who can care for the child(ren), sign that field trip consent, who can take the child to the dentist and represent legitimately that they can speak for this minor child.

Guardians and Conservators: their selection can be crucial. Minor children who lose their parents, and adults who need help both may be dependent.

Leave a Reply

Your email address will not be published. Required fields are marked *