Alternatives to Guardianship & Conservatorship

Image of two women sitting on a beige couch. On the left is a woman with Down Syndrome, long dark hair, and a purple shirt. On the right is a blonde woman in a green shirt. She is turned away from the camera, looking at the other woman. To the right is a white background with navy blue and orange text that reads: "Guardianship should be a last resort. Alternatives may include Supported Decision Making, Professional Assistance, Power of Attorney...and more." Between the image and the text is a navy blue rectangle with white text that reads "LEARN MORE" and an orange icon of a computer mouse inside of a white circle.

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A proposed ward is the person with a disability for whom a guardianship or conservatorship is being requested.

A ward is the person who has a guardian or conservator.

A guardian is a person who is appointed by a court to make personal decisions for the ward, like where the ward lives or what doctor the ward sees.

A conservator is a person who is appointed by a court to make decisions about the ward’s money, like paying the ward’s bills or investing the ward’s money.

A guardian or conservator may or may not be a member of the ward’s family. The ward has a right to propose who should be their guardian or conservator. The court makes the final decision.

Goal of Guardianship/Conservatorship:

IF it becomes necessary to establish a guardianship or a conservatorship over a person with a disability, the guardian or conservator must provide the greatest possible degree of comfort, dignity, and self-sufficiency for the ward. This can be accomplished by helping the ward lead the least restrictive life possible, while ensuring the ward’s protection. Ultimately, the goal of the guardian or conservator should be to restore the ward to full decision-making capacity.

Alternatives to Guardianship/Conservatorship

A guardianship or conservatorship should be a last resort. No one should be forced into a guardianship or conservatorship based on disability alone. Guardianship/ Conservatorship is used far too often.

  • The simplest alternative is community help. Family, friends or volunteers can help a person with a disability with daily living while he or she stays in control of personal and financial decisions. This is often referred to as Supported Decision Making.
  • Another alternative is professional assistance through federal, state, county, and non-profit agencies. Individuals can get financial help through Social Security, Medicaid/Medicare, subsidized housing, food stamps and more. These services can help prevent the need for a guardianship/ conservatorship.
  • A person with a disability may give another person a power of attorney, in the event that he or she wants another person to help with decision making or if he or she becomes unable to make his or her own decisions. A power of attorney is a great alternative to guardianship/ conservatorship, because the person with a disability ultimately stays in control of their life. A power of attorney can be done for many reasons, including for healthcare and/or financial assistance.
  • Other alternatives may include a representative payee to help with finances if the person is receiving social security benefits, a joint checking account, and case management.

If a petition for guardianship and/or conservatorship has been filed, the proposed ward should provide the court with alternative to a guardianship or conservatorship. Judges are often willing to avoid guardianships and conservatorships if the proposed ward has a plan to address any concerns raised in the petition. If you are a person with a disability, contact DRC Kansas for help with getting alternatives to guardianship/ conservatorship.

Guardianship:

Wards have the right to a guardianship plan. This plan tells guardians what their responsibilities and restrictions are and what decisions the ward can make on his or her own. You must ask for a guardianship plan - they are not automatic.

The Responsibilities of a Guardian

  • Must personally know the ward, the ward’s family, and others who know about the ward’s needs and responsibilities
  • Make only those decisions that the ward cannot make on his or her own
  • Make sure the ward is living in the least restrictive environment available and provide for the ward’s care, treatment, housing, education, support, and medical care
  • A guardian must allow and encourage the ward to participate in making decisions on his or her own
  • Allow and encourage the ward to become independent
  • Do his or her best to consider the desires and beliefs of the ward when making personal decisions for the ward
  • Keep the ward’s best interest at heart
  • Since a guardian is a court appointee, a guardian must follow the court’s instructions and make an annual reporting to the court

The Limitations of a Guardian

  • A guardian may not limit the major life activities of a ward including marriage, divorce, termination of parental rights, or adoption.
  • A guardian may not put the ward in a treatment facility or take control of the ward’s estate without a court order.
  • A guardian may not make independent medical decisions for the ward except in the event of an emergency or if the ward has expressed his or her choices through a living will or upon obtaining a court order.

A guardian will be held liable for his or her own actions if they abuse their court appointed authority over the ward.

Conservatorship:

Wards have the right to a conservatorship plan. This plan tells conservators what their responsibilities and restrictions are and what funds the ward can still control on his or her own. The plan may have requirements on how the conservator can seek public assistance for the ward.

The Responsibilities of a Conservator

  • Be informed about the ward’s financial needs and property
  • Only make the financial decisions that the ward cannot make on his or her own
  • Pay for the ward’s care, treatment, housing, education, support, and medical care
  • Allow and encourage the ward to participate in making decisions on his or her own
  • Allow and encourage the ward to become independent in managing his or her finances
  • Do their best to consider the desires and beliefs of the ward when making decisions
  • Manage the ward’s estate. This includes collecting debts, selling the ward’s assets, insuring the ward’s estate, and bringing and defending law suits when in the best interest of the ward
  • Make annual accounting reports to the court

The Limitations of a Conservator

  • Cannot use a child ward’s estate to pay for any obligation of the child ward’s natural guardian(s) without the court’s approval
  • Cannot sell, lease or mortgage the ward’s home without the court’s approval. If the ward has a spouse, the spouse must also agree to the home sale
  • May not sell, lease or mortgage any other property owned by the ward without court approval
  • May not make gifts in the ward’s name without court approval

A conservator will be held liable for his or her own actions if they abuse their court appointed authority over the ward.

Frequently Asked Questions for Kansans with Disabilities:

Q: Can I end the guardianship or conservatorship over me?

A: Yes. When a person with a disability no longer needs a guardian or conservator, the court may end it. The person with a disability can go to court to end the guardianship. In the event of death, any guardianship over a person with a disability automatically ends. A conservatorship does not automatically end due to death. The court will make the decision when to end the conservatorship.

Q: What if the court has concerns with the way I take care of myself or my property? Is that enough to determine that I need a guardian or conservator?

A: No. Exercising questionable or even “poor” judgment is not enough for the court to establish that you are in need of a guardian or conservator.

Q: If a person in foster care turns 18, does she or he have to have a guardian or conservator appointed?

A: No. Just because someone has been in foster care, they do not have to have a guardian or conservator appointed when they turn 18. In fact, too many guardianships are appointed over young adults in foster care when they turn 18.

Q: Is a guardianship or conservatorship from another state valid in Kansas?

A: Maybe. Kansas does give credit to guardianships from other states but in order to have a Kansas guardianship or conservatorship, the guardian or conservator must petition the Kansas court. The person with a disability has a right to be represented by an attorney in the Kansas court.

Q: Can I get married?

A: Yes. A guardian cannot prevent a ward from getting married.

Q: Who determines if I need a guardian or conservator?

A: A judge makes the final decision whether you need a guardian or conservator. If someone is trying to get guardianship or conservatorship over you, the court is required to make sure you have an attorney representing you. This attorney must advocate for you. You have the absolute right to hire an attorney you choose. If you feel your attorney is not properly representing your interests, you can contact DRC Kansas for assistance.

Q: Can my conservator sell my property?

A: Yes, but only when it is in your best interest. A conservator can only sell your home with specific court approval. If you are married, your spouse must agree to the sale of your home.

Q: I am a Kansan and someone is trying to get a guardianship/conservatorship placed over me. I don’t want or need one. What can I do?

A: Contact DRC Kansas at 1-877-776-1541 or info@drckansas.org.

Watch the video below to learn more about alternatives to guardianship:

Alternatives to Guardianship & Conservatorship