Guardianship & Conservatorship

Additional Information About Guardians & Conservators

Roles of Guardians and Conservators

People incapacitated by age, illness or disability may need special protection. There is a court process in the State of Utah for an interested party (usually a family member) to be appointed to make decisions for another concerning their finances, care, and well-being.

What is a guardian and a conservator?

A guardian is a person or institution appointed by a court to make decisions about the care of another, who is called a “ward.” A conservator is a person or institution appointed by the court to manage the property and financial affairs of a ward. Sometimes the same person is appointed to both roles.

A guardian has the same responsibilities that a parent has for a minor, except that the guardian does not have to use his or her own money for the ward’s care and support.

A conservator is the trustee of the ward’s estate. The ward’s estate includes all of his or her property. Some examples are income (such as wages, an annuity, or Social Security or other government benefits), real property (buildings and land), furniture, cash, bank accounts, certificates of deposit, stocks, bonds, retirement benefits, motor vehicles, and valuables such as jewelry, furs, and art. A conservator must use reasonable care, skill and caution to manage and invest the estate as a prudent investor would.

If the ward needs help in some but not all areas of decision making, the court may order a limited guardianship. Under Utah law, a limited guardianship is preferred, and the court may grant a full guardianship only if no alternative exists. A limited guardian has only those powers and duties listed in the court order. The court may also limit the conservator’s authority.

Record Keeping

Keeping good records is essential for guardians and conservators because you must account for all transactions at least annually. Contemporaneous records, that is, records prepared at the same time as an event, will help later, when you prepare your reports.

As guardian, you must report the status of your ward to the court. Guardians must also report financial transactions to the court or, if there is one, to the conservator.

As conservator, you must report financial transactions to the court. In addition to annual reports, any person interested in your ward can request further reports. Also, you can claim reimbursement from the estate for your ward’s living expenses that you pay with your own money. You may be personally liable if you do not keep proper records. The court may order you to reimburse the estate if you cannot show what you did with your ward’s property, even if you know that you used it in your ward’s best interests. Good records help to protect you in the event that your management of the estate is questioned.

Reporting

Guardian

A guardian must file an annual report to the court of the status of the ward. The annual report shows how the ward is doing and alerts the court to any changes. Between annual reports, the guardian should inform the family and other interested persons of any significant changes in the ward’s circumstances. If the ward dies, notify the court and the interested persons at once.

If the court has appointed a separate conservator, the guardian must report to the conservator the financial transactions that you have taken on your ward’s behalf. Because the conservator has to report annually to the court, the guardian should report at least annually to the conservator.

Conservator

Within 90 days after being appointed as conservator you must file with the court an inventory listing the estate property. The conservator’s first task is to locate and identify all of the property. Once the conservator has a complete list of the property, the conservator prepares the inventory and files it with the court. Later, if the conservator discovers more property, he/she files an amended inventory.

A conservator must annually account to the court for the ward’s estate. Filing an accurate accounting is important. Failure to do so makes the conservator liable for a fine.

Liability

You are not personally liable for your ward’s acts. You are not liable for reasonable actions taken in the best interests of your ward. You are not liable for managing your ward’s estate if you act like a prudent person dealing with the property of another. You are liable if you are personally at fault and your ward is damaged by your carelessness.

Financial decisions

If the court appoints a conservator, the conservator will decide most issues involving the ward’s money and property and will file accountings. If the court does not appoint a separate conservator, the guardian has some of the conservator’s responsibilities.

As guardian, you must manage your ward’s money and property to pay for his or her support, care and education. If your ward has money and property beyond what is needed for support, care and education, a conservator, either you or another, should invest the excess.

You may use your ward’s funds only for his or her benefit. You may take into account your ward’s accustomed standard of living. If family members express concern about the cost of your ward’s care, your responsibility is to your ward, not the heirs.

Open a checking account in the name of the guardianship or conservatorship to deposit income and pay bills. Completely describe each transaction. If the balance in the checking account accumulates beyond your ward’s needs, transfer the excess to an interest bearing account or other investment in the name of the guardianship or conservatorship. If you need to withdraw money from the investment account to pay for an extraordinary expense, first transfer the money into the checking account.

Keep your ward’s property – including money – separate from yours, and use your ward’s property only for his or her benefit. Manage your ward’s property as you would want someone else to handle yours. Consult your lawyer or financial counselor to answer specific questions.

What is a guardian’s responsibility?

Generally, a guardian has the same responsibility that a parent has for a minor child. If the court does not appoint a separate conservator, you also have some of the conservator’s responsibilities.

Unless your authority is limited by the appointment order, you:

may have custody of your ward;
may establish your ward's place of abode;
must provide for your ward’s care, comfort and maintenance and arrange for your ward's education and social activities;
must take reasonable care of your ward’s personal effects;
may consent to enable your ward to receive medical or professional care, counsel or treatment;
may consent to your ward’s marriage, if authorized by a court to give consent;
may consent to your ward’s adoption if authorized by a court to give consent and if the rights of the ward's parents have been terminated;
must start proceedings to protect your ward’s property or to compel someone to pay money due your ward;
must exercise care to conserve any excess money or property for your ward's future needs.

If someone else has been separately appointed the conservator, the conservator has most of the responsibility for money and property.

If the court has appointed a separate conservator, a guardian has the right to receive from the conservator reasonable sums for the ward’s daily living expenses. This might be in the form of an allowance to the guardian to pay third persons, or the conservator might pay third persons directly.

As guardian, you may not:

sell your ward’s property, such as stocks or real estate, unless also appointed as conservator;
cast your ward’s ballot in an election;
decide your ward’s religious preference;
write a will for your ward or change a previously executed will;
physically punish your ward;
neglect appropriate healthcare for your ward;
leave your ward unattended if he or she needs care; or
commit your ward to a psychiatric hospital without a commitment hearing, unless your ward consents or the authority was expressly granted in the appointment order.

What is a conservator’s responsibility?

A conservator must exercise reasonable care, skill and caution to invest and manage estate assets as a prudent investor would, considering the estate’s circumstances. The conservator must make a reasonable effort to verify relevant facts. The conservator’s investment and management decisions about individual assets must be evaluated in the context of the estate as a whole and as a part of an overall investment strategy having risk and return objectives reasonably suited to the estate. Circumstances that a conservator should consider in investing and managing estate assets include the following:

general economic conditions and the possible effect of inflation or deflation;
the expected tax consequences of investment decisions or strategies;
the role that an investment or course of action plays within the overall portfolio;
the expected total return from income and the appreciation of capital;
the size of the estate, the need for liquidity, regularity of income, and preservation or appreciation of capital; and
an asset's special value to the purposes of the estate or to the ward.

Unless the conservator’s authority is limited by the appointment order, the conservator may:

collect, hold, and retain estate assets;
invest in any kind of property or type of investment that is consistent with the standards imposed by the Utah Code;
allocate items of income or expense to estate income or principal;
acquire estate assets or take an option to acquire estate assets;
dispose of estate assets or grant an option to dispose of an estate asset;
invest and reinvest estate assets;
deposit estate funds in a bank;
continue or participate in operating any business or enterprise;
acquire an undivided interest in an estate asset in which the conservator holds an undivided interest;
manage, develop, improve, exchange, partition, abandon or change the character of, an estate asset;
repair, modify or demolish buildings, structures or improvements;
subdivide, develop, or dedicate land to public use; make or obtain the vacation of plats and adjust boundaries; adjust differences in valuation on exchange or partition by giving or receiving considerations; and dedicate easements to public use without consideration;
enter into a lease for a term within or extending beyond the term of the conservatorship;
vote a security;
pay calls, assessments, and other sums accruing on account of securities;
sell or exercise stock subscription or conversion rights; consent to the reorganization, consolidation, merger, dissolution, or liquidation of a corporation or other business enterprise;
hold a security in the name of a nominee or in other form without disclosure of the conservatorship;
insure estate assets against damage or loss and the conservator against liability with respect to third persons;
borrow money and advance money for protecting the estate or the ward, and for all expenses, losses, and liabilities sustained in administering the estate;
prosecute or defend actions, claims, or proceedings for protecting estate assets and you, as conservator, in the performance of your duties;
pay, settle or contest a claim by or against the estate or the ward;
release any claim of the estate to the extent that the claim is uncollectible;
pay taxes, assessments, your compensation, and other expenses incurred in the collection, care, administration, and protection of the estate;
pay any sum distributable to your ward or his dependent by paying the sum to your ward, to his guardian if there is one, or to the person with custody of your ward;
employ persons to advise or assist you in the performance of your duties and act upon their recommendation personally or by an agent;
execute and deliver instruments to facilitate the exercise of your powers;
spend or distribute income or principal for the support, education, care or benefit of your ward and his or her dependents;
if the estate is sufficient to provide for the support, education, care or benefit of your ward and his or her dependents and if the estate is that of an incapacitated adult, you may make gifts to charity as your ward might have been expected to make, provided the total does not exceed for any year 20% of the income from the estate; and
pay all just claims against the estate and against your ward.

A conservator may not:

commingle their personal funds with those of the ward;
pay the conservator’s personal expenses from the estate (For example, do not use your ward’s money to pay your personal bills.);
deposit estate funds into the conservator’s account or the conservator’s funds into the estate account;
borrow money or property from the ward’s estate;
sell estate property for less than fair market value (For example, do not sell the property to family members at reduced prices.);
record the conservator’s name on the wards property as though the conservator is the owner (For example, do not record your name on your ward’s bank account as if you owned the account. It is proper to record your name on an account as your ward’s conservator).

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The above information is based on the manual BASIC GUIDELINES FOR COURT-APPOINTED GUARDIANS AND CONSERVATORS produced by the COMMITTEE ON LAW AND AGING, UTAH STATE BAR and the ADMINISTRATIVE OFFICE OF THE UTAH STATE COURTS. This manual and other help and information are on the web at: http://www.utcourts.gov/howto/seniors/BasicGuidelines-2007.pdf