Differences between Guardianships and Conservatorships
Provided by HG.org
Loved ones who are concerned about a loved one may decide to seek a formal appointment as the individualís guardian or conservator. Which designation the person seeks will depend on the state where it is granted, the purpose of the appointment and factors specific to the personís particular situation.
Guardianships and conservatorships may be the same or may be very different, depending on state laws. When these two terms are not interchangeable, a guardianship is usually a legal relationship in which the guardian can make important decisions about the wardís health, safety and residence. Conservatorships are typically regarding only the conservatorís role to protect the assets and income of the ward. In some states, a guardian handles the personal and financial affairs. One guardian may be appointed for financial affairs while another may be appointed for personal affairs.
Reasons for Guardianships
Guardianships may be desired when a person loses capacity to make sound decisions regarding his or her own health or safety. Individuals with dementia, Alzheimerís, traumatic brain injuries, physical disabilities or mental health issues may have difficulty managing on their own. They may have difficulty making decisions regarding their living arrangements, medical treatment and personal care. A spouse, adult child, other relative or other concerned person may petition for guardianship. A guardianship is particularly important when there is not a healthcare power of attorney on hand and no clear personís instructions to follow.
Reasons for Conservatorships
Conservatorships are often sought when the primary concerns are regarding money matters. For example, the individual may not be able to pay bills any longer. He or she may waste money because of lottery scams or other financial scams.
A guardian may be responsible for arranging the wardís living arrangements and making arrangements for his or her medical, mental and dental care. Some states do not allow a guardian to sell the wardís home absent a separate court order to this effect. Some states do not permit a guardian to move the ward into a nursing home without court permission. Additionally, states may limit the types of medical decisions that a guardian can make about a ward.
A conservator tends to the wardís financial affairs. He or she manages, protects, preserves and disposes of the wardís estate in accordance with state laws. He or she uses the wardís funds to pay for his or her care and support. A conservator may manage the wardís bank account and other assets. He or she may manage the individualís finances through paying bills, collecting debts and managing cash flow. A conservator may not be allowed to create a will on behalf of the ward. However, a conservator may have the legal power to transfer assets to help the ward qualify for certain programs, such as Medicaid.
A guardian or conservator has a fiduciary duty over the ward and must act in the wardís best interest.
Appointment of a Guardian or Conservator
State laws dictate how guardians or conservators are appointed. A person may be able to nominate a guardian or conservator in a power of attorney or other document that states his or her wishes. He or she may also be able to consent to a conservatorship or guardianship.
Typically, a guardian or conservator is appointed pursuant to a court order. The desired guardian or conservator usually submits a petition to the court, alleging the grounds why a guardianship or conservatorship is necessary. State law may require these grounds be supported by medical testimony or an affidavit from a medical professional.
Some states have voluntary proceedings in which the ward petitions the probate court personally to appoint a person of his or her choosing to protect and manage his or her financial affairs. Before appointing a conservator, the court must determine that the person is not capable of managing his or her own affairs.
Alternatives to Guardianship or Conservatorship
There may be other legal alternatives to guardianship or conservatorship. A power of attorney allows the named individual to handle a personís financial affairs for him or her. A power of attorney for healthcare allows the named agent to make medical decisions in the event that the individual cannot make these decisions personally. A living revocable trust can provide instructions to be followed in case a person becomes incapacitated.
Contact an Estate Planning Lawyer for Assistance
An estate planning lawyer can discuss whether a guardianship, conservatorship or other option is appropriate in your circumstance, based on the particular circumstances involved.
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.