Harrison & Smyth, P.A.

Guardianship And Conservatorship Of Incapacitated Individuals


We have been doing guardianships for the past 14 years. We have gained a lot of experience in dealing with those types of situations. An incapacitated individual is classified as someone who cannot take care of themselves and is unable to take care of their daily living and/or finances. Usually we see this in elderly clients where their children are needing to step in and help them out. They come to our office if there is not a living will that gives someone authority to be able to help in making medical decisions or if there is not a power of attorney which allows someone to make financial decisions for them. Oftentimes they come to the office in an emergency situation because they don’t have a power of attorney or a living will and they need to be able to take care of their parent.

In those situations, we need a letter from the doctor letting us know what the diagnosis is and what their disability is and whether a guardianship is necessary. Once we get that, we draft a petition and file it with the court to have someone appointed as guardian and conservator. In the state of Idaho, we cannot have co-guardians or co-conservators for an incapacitate individual. We can have an alternate behind the individual who is appointed as guardian and conservator. A guardian is someone who takes care of a person, where they live and what they eat, their daily living. A conservator is someone who takes care of their finances. Oftentimes we just have both of those appointed at the same time.

After a petition is filed the guardian needs to pass a criminal background check. Once that is done, the court visitor, which is usually an attorney, a nurse, or someone trained in psychology, social work, or counseling, will meet with the proposed guardian as well as the incapacitated individual and write a report to the court. The court also appoints a physician, or other qualified healthcare professional, to tell the court what the individual’s diagnosis is and whether they feel a guardian is appropriate. Lastly, the court will appoint an attorney to represent the incapacitated individual. This is to ensure that the incapacitated individual’s rights are taken care of and to ensure the individual understands their legal rights with respect to guardianships. All 3 of those people, the attorney, the physician, and the court visitor give reports to the court as to whether they feel the guardianship is appropriate.

The court also issues orders for the guardian to take an online guardian class and an online conservatorship class. This is something you do at home on the internet. When you are done, you have to click a button to submit those reports to the court. Once we’ve got all the reports in and you’ve taken the online class and gotten the criminal background check done, we set up a final hearing. Usually these hearings are very short unless there are siblings that are fighting over how their parents should be taken care of. If no one is opposing the petition, then it is usually a very short hearing in which the court just wants to make sure that you understand your responsibilities as a guardian and a conservator. After you are appointed as guardian, you will have to do a 30 day initial report to the court and then every year after you are appointed you will do an annual guardian report.

If you are appointed as conservator you have an initial conservator report due in 90 days after you are appointed and then every year after that. Usually there is a small fee for those and depending on the assets of the incapacitated individual, we can ask the court to waive those if they do not have a lot of assets.

The other thing I always talk about with individuals is to have them review their wills and their accounts just to ensure how their assets are being distributed, so that we get as much of that taken care of as we can. Oftentimes if clients contact me before an emergency happens and get their estate planning documents in order such as a will or trust, living will and power of attorney, then a lot of times we can avoid the costs of needing a guardianship. If you don’t have those in place or if someone is not accepting them, please contact me and we can get the various options with regards to getting guardianship and/or conservatorship for an incapacitated individual. Thank you.

For more information on Guardianship Of Incapacitated Individuals, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (208) 552-1165 today.

HARRISON & SMYTH, P.A.

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(208) 552-1165