Many people think they need to obtain guardianship or conservatorship over a person immediately after a person becomes incapacitated. This is rarely true.

A guardian makes health and living arrangement decisions for an incapacitated individual. A conservator makes financial decisions for a protected individual. To obtain either a guardianship or conservatorship, you must petition the probate court. The probate court must determine whether a guardianship or conservatorship is appropriate and who should serve as the guardian or conservator.

A guardianship is usually not necessary if the individual has a Healthcare Power of Attorney. Likewise, a conservatorship is usually not necessary if the individual has a Financial Power of Attorney.

If the individual does not have a Healthcare Power of Attorney, a guardianship sometimes becomes necessary in the following situations:

•  When the individual refuses to leave their home, but is endangering their life or others, and needs to be moved into a care facility;
• To receive medical records and information on the individual;
• To make medical decisions on behalf of the individual;
• To make placement decisions on behalf of an individual.

If the individual does not have a Financial Power of Attorney, a conservatorship sometimes becomes necessary in the following situations:

• When the individual has no one else’s name on his or her assets, and there is no way to access his or her money to pay expenses;
• When the individual is entering a nursing home, has assets in only his or her name, and the family wishes to do Medicaid planning to help preserve assets from nursing home expenses;

When the individual’s assets need to be protected because the individual is no longer able to control his or her finances, or the individual is being taken advantage of by an unscrupulous person or company.