Protected Individuals

 

The Estates and Protected Individuals Code (EPIC) governs matters pertaining to the administration of estates of deceased and protected persons. The Probate Court has exclusive jurisdiction over these matters.

 

Protected individuals are persons who by reason of their age or physical impairment cannot manage their own affairs. A guardian may be required for an unmarried minor whose parents are deceased or whose parental rights to custody are terminated or suspended by circumstances or prior court order. A guardian may also be required for a person who is impaired by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, or other cause, except minority, to the extent that the person lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his or her person. A guardian is a person who is given authority to exercise certain powers over a protected individual. Guardians are appointed by order of the court. A prospective guardian may be nominated by petition, by will, or other written document signed by the parent and at least two other witnesses.

 

If a protected individual has an estate that requires management, the protected individual may need a conservator. A conservator is a person appointed by the court to exercise powers over the assets of a protected individual. The same person may serve as both guardian and conservator, or two separate persons may be appointed.

 

A conservator may be appointed if the court finds that any of the following circumstances exist:

  • A minor owns money or property that requires management or protection.

  • A minor has or may have business affairs that may be jeopardized or prevented by the persons minority.

  • Funds are needed for the person’s support and education and that protection is necessary or desirable to obtain or provide funds.

  • The court determines an individual is unable to manage his or her property and affairs effectively for reasons such as mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, confinement, detention by a foreign power, or disappearance; the person has property which will be wasted or dissipated unless proper management is provided; funds are needed for the support, care, and welfare of the person or those entitled to be supported by the person.

When a minor’s estate is under $5000, a conservator is not needed. The following persons may receive up to $5000 per year for the support and education of the minor without being appointed conservator: 

  • The minor’s parent;

  • The person having care and custody of the minor under court order;

  • The person with whom the minor resides; or

  • The guardian of the minor

Any interested person can petition the court for a guardian or conservator of a protected individual, and: 

  • A minor 14 years of age or older may nominate his or her own guardian or petition for appointment of a conservator;

  • An adult person may petition for appointment of a guardian or conservator for himself or herself;

  • A person who is interested in the person’s estate, affairs, or welfare including his or her parent, guardian or custodian may petition for appointment of a conservator;

  • A person who may be adversely affected by lack of the effective management of the protected persons property or affairs may petition for appointment of a conservator.

A limited guardianship of a minor may be established only upon the consent of the custodial parent. A limited guardianship grants full custody of the child to the limited guardian, except the guardian may not consent to adoption or marriage. At any time the parent or limited guardian may withdraw their consent by filing the necessary documents with the court. The court must discharge the guardianship but may require a hearing prior to doing so. The court reviews limited guardianships annually for children under 6 years of age.

 

A guardian must file a written report annually showing the wards condition, the condition of the ward’s estate subject to the guardians possession, any medical or psychiatric treatment or care to which the ward was subjected during the report period and what reason, if any exists, for continuation of the guardianship. There is a form provided by the Probate Court to satisfy this obligation.

 

A conservator must:

  • Within 56 days of appointment file a complete inventory of the ward’s assets;

  • Provide a copy of the inventory to an adult ward; or

  • Provide a copy of the inventory to a minor’s parent or guardians.

  • Annually file with the court an itemized accounting of all expenditures, disbursements, and property remaining in his/her hands and in what form.

Failure of the conservator to file an inventory or annual account will result in suspension of the conservator’s powers.

 

Since these legal proceedings can substantially affect the protected person’s rights as well as subject the fiduciary to personal liability, it is advisable to seek consultation with an attorney prior to instituting action.

 

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