If you have an aging parent who you fear is rapidly reaching the point at which he/she will not be able to safely maintain his/her autonomy, it may be time to explore your legal options. Specifically, you may need to consider petitioning a court for the right to make decisions for your parent and/or control your parent’s assets. Does this mean you need to become a Guardian or a Conservator? The Grand Forks elder law attorneys at German Law explain the difference between a Guardian and a Conservator.
Conservatorship vs. Guardianship – Understanding the Terminology
The first thing you need to understand is the legal terminology used by the various states. Laws governing adult guardianship and/or conservatorship are enacted at the state level, meaning each state may have slightly different definitions, requirements, and procedures. Not all states use both terms. The State of Indiana, for example, does not use the term “conservatorship.” Instead, Indiana offers different types of guardianship. In some states, however, a guardianship refers to a situation where an adult needs someone to make personal decisions for them because of their incapacity while a conservatorship refers to a situation where an adult needs someone to control assets and make financial decisions for them because of their incapacity. While the two words can mean much the same thing, it is important to know which word, or combination of words, is used in a particular state. The person in need of a Guardian or Conservator is often referred to as the “Ward” or the “Incapacitated Person.”
Becoming a Guardian in North Dakota
To become a Guardian in North Dakota you must go through a legal process that culminates in a judge granting you guardianship over the Ward. For a court to consider appointing a Guardian, you must prove that the proposed Ward is incapacitated. North Dakota Century Code 30.1-26-01. (5-101) defines incapacity as follows:
“Incapacitated person” means any adult person who is impaired by reason of mental illness, mental deficiency, physical illness or disability, or chemical dependency to the extent that the person lacks capacity to make or communicate responsible decisions concerning that person’s matters of residence, education, medical treatment, legal affairs, vocation, finance, or other matters, or which incapacity endangers the person’s health or safety.”
Instead of using both terms (Guardian and Conservator), North Dakota recognizes two primary types of guardianship, including:
- Guardian of the Person – as a Guardian of the person would be legally authorized to make decisions relating to personal matters and daily tasks involving the Ward. Some common decisions a guardian might make include, but are not limited to, the following:
- Where the ward will live.
- What physician will treat the ward.
- Whether or not the ward continues to be allowed to drive.
- Who may have contact with the Ward
- Guardian of the Estate – in some other states, this type of guardianship is referred to as a conservatorship. As a Guardian of the estate, you would be legally authorized to make decisions relating to the estate and finances of the Ward. For example, you might be able to decide:
- Whether or not to sell an asset
- Which bills to pay
- Whether to purchase stocks or other securities with the ward’s investment account
- Whether to enter into a contract in the Ward’s name
In addition, you can petition for an emergency guardianship if you believe the need for a Guardian is urgent. To become a Guardian, you normally must petition the court, notify the proposed Ward and immediate family members, and give everyone involved the opportunity to object to the appointment of a Guardian at a court hearing. If the proposed Ward is in immediate danger, the court will consider appointing you as a temporary Guardian immediately, without first conducting a hearing.
Contact Grand Forks Elder Law Attorneys
Please join us for an upcoming FREE seminar. If you have additional questions or concerns about guardianship, contact the Grand Forks elder law attorneys at German Law by calling 701-738-0060 to schedule an appointment.