Incompetence and the Guardianship/Conservatorship Legal Proceeding

Generally, the process of guardianship or conservatorship begins when a person files a petition with the court to "open up" a guardianship or conservatorship proceeding. Usually, a parent opens such a proceeding for a child, or an adult child or spouse opens such a proceeding for their incompetent parent or spouse.

However, the courts are full of persons claiming to "know best" about the affairs of an incompetent person. These persons often file such proceedings on their own and ask that they be put in charge of the affairs of the person who is incompetent. Sometimes a person who files for a conservatorship or guardian can be a distant relative, a case worker, a grandparent or even a healthcare facility.

Sometimes that person may not even be incompetent. However, the person seeking to open the conservator or guardianship proceeding is often also seeking to control the assets and affairs of the person who they claim is incompetent. Such a proceeding usually affects the alleged incompetent person's relatives, who must take action in the courts to protect their relative's estate from such attacks.

If a conservatorship or guardianship is filed with the court, the court must first make a determination if it even has jurisdiction over the matter. Usually, this is made by reviewing the exhibits attached to the petition, which may include statements from one or more certified medical specialists regarding the competency of the person. In the case of minors, obviously no medical incompetency information is part of the records. Rather, the court ascertains the age of the minor and proceeds to exercise jurisdiction over the minor.

It is very simple to put into effect the means of protection against such attacks. To learn more, contact member services.

Posted in: Conservatorship