Guardianship and Conservatorship

Guardianship and conservatorship are legal proceedings to select someone to make decisions for someone else who has become mentally incapacitated, or a minor. A guardian makes healthcare and non-financial decisions like education and religion, and a conservator makes financial decisions.  

Jurisdiction 

Hawaii family courts have jurisdiction over guardianships for people living in Hawaii, and can appoint a guardian for someone who is only present in Hawaii in an emergency situation. Hawaii probate courts have jurisdiction over conservatorships for people who are living in Hawaii and own property in Hawaii.  

Key Legal Issues 

Mental Incapacitation 

Mental incapacitation is when a person cannot make or communicate informed decisions. We assume a person can make and communicate these decisions unless proven otherwise. Someone can be considered partially incapacitated, so they might keep some responsibilities but lose others. Examples of things leading to mental incapacitation could be age related decline, a disability, or a head injury.  

Court Oversight 

The court will oversee the appointed conservator or guardian’s actions on an ongoing basis. Each year an accounting must be presented to the court by the conservator and/or guardian showing all of the expenses and earnings of the incapacitated person. 

Duties of Guardians 

• Making medical and non-financial decisions like education and religion; 

• Take reasonable care of personal items; 
• Spend money for the support, care, and education of the incapacitated person; 
• Save any left-over money and pay it to the conservator if one is appointed 

Duties of Conservators 

• Efficiently manage the estate of the incapacitated person; 

• Pay the incapacitated person’s debts, and collect debts they are owed; 
• Appear for the incapacitated person in legal proceedings 

Process 

A court proceeding determines if someone is mentally incapacitated. If they are found incapacitated, a guardian or conservator will be appointed. The Hawaii Probate Court will appoint a conservator for financial decisions and the Hawaii Family Court will appoint a guardian for healthcare and non-financial decisions.  

A physician must certify that the incapacitated person cannot evaluate information or make/communicate decisions such that their health and/or safety is at risk. The judge may appoint a court worker who is usually an attorney to investigate the case by conducting interviews and make a recommendation. The judge will then make a decision.   

Special Concerns 

If the incapacitated person has already signed a power of attorney for medical and/or financial decisions while they had capacity, appointing a guardian or conservator may not be needed. The person who has been granted a power of attorney would be able to make the decisions.