Legal Website for Ronald A. Ernst, Esquire

With the aging of the population, this is an area of the law that has become ever more important.  Often, because of Alzheimer's disease or other mental impairment, a parent or other family member is unable to take care of their personal needs or financial affairs.  Unless the incapacitated family member executed a power of attorney or health care power of attorney while competent, concerned family members may not be able to act on the incapacitated family member's behalf.  At that time, a family member would have to petition the Probate Court to be appointed as a Guardian and Conservator.

A Guardian ensures that the physical and medical needs of the incapacitated person are being met.  A Conservator ensures that the incapacitated person's financial affairs are in order and property protected.

A Guardian and Conservator case can be procedurally involved.  The incapacitated person must be examined by two examiners appointed by the Court to verify the incapacity and a Guardian Ad Litem/Attorney is also appointed to represent the incapacitated person.  The Guardian Ad Litem/Attorney makes sure that the incapacitated person's rights are protected.  A Visitor is also appointed to visit the incapacitated person in his or her home environment and prepare a report.  The designated examiners, Guardian Ad Litem/Attorney and Visitor are all qualified professionals who provide professional services that are paid for out of the incapacitated person's assets.  This sounds like a complex procedure, but it is necessary because the action results in very real restrictions on the legal rights of the incapacitated person.

A Conservator must provide annual accountings to the Probate Court.  Major transactions involving the incapacitated person's property, such as the sale of a home, usually require the Court's approval and must be for the benefit of the incapacitated person.