Conservatorship and Guardianship are legal court proceedings for an incapacitated person (adult or minor). A Conservator will be appointed for financial matters by the Hawaii Probate Court and a Guardian will be appointed for healthcare decisions by the Hawaii Family Court. Often times, the Conservatorship and Guardianship proceedings can be consolidated and heard in one court. Legal fees for such could range from $6,000 to $12,000 or more depending on how complicated the case. All legal fees are hourly and the court must approve all attorney fees.
If an individual does not sign and appoint a financial or healthcare power of attorney and he or she becomes incapacitated, a petition to the Probate court judge or the Family court judge must be filed and Letters of Conservatorship and Guardianship must be issued by the court naming a person to make decisions legally for the incapacitated person for financial and healthcare matters.
A physician must certify that the incapacitated person is “unable to receive and evaluate information or make or communicate decisions to such an extent that the individual lack the ability to meet essential requirements for physical health, safety, or self-care, even with appropriate and reasonably available technological assistance” pursuant to the Hawaii Revised Statutes.
Before the judge signs the Letters of Conservatorship and Guardianship, he appoints a Kokua Kanawai (court helper) to do an investigation of the case and to make a recommendation to the judge whether the petition should be granted. The Kokua Kanawai is usually an attorney that will do interviews with the family and write a report to the judge as to whether this person should be suitable to be the Conservator or Guardian of the incapacitated minor or adult. There is a fee for the Kokua Kanawai of which must be paid by the petitioner, approximately $1,500 to $2,500 or more, depending on the hours that the Kokua Kanawai spent.
Once a Conservatorship and/or Guardianship is established, the court will continue to oversee the duties of the Conservator and Guardian. Each year, an annually accounting must be prepared by an attorney and submitted to the court showing all the expenditures and income earned by the incapacitated person. Therefore, each year there will be additional legal expenses for reporting requirements to the court. Annual fees could run from $1,000 to $3,000 depending on the assets.
As you can see, a Conservatorship and Guardianship is very expensive, time consuming and restrictive. Therefore, we recommend that you see an Estate Planning attorney to plan for incapacity to avoid a Conservatorship or Guardianship. Call Sterling & Tucker now and set up a 15 minute free consultation or attend one of our seminars and get a free hour consultation.