Key Differences Between Conservatorships and Guardianships

Conservatorships and guardianships differ in key ways that affect the control over the affairs of an adult who is unable to care for his or her financial and healthcare needs.

In the conservatorship, the adult needs help with financial matters either because he or she cannot - or is unable to - make the necessary decisions to manage their affairs. A guardianship takes over the medical and healthcare concerns to ensure the adult is able to recover from injury, has medication, or receives the treatment to recover and survive.

The Courts and the Relationship

When an adult is unable to take care of either financial or medical matters, the courts may become involved when the family or another loved one is not available to do so for him or her. The judge will appoint a guardian to take care of the specific issue when no one else is available. This may occur when the adult is in a coma, incapacitated, of a very advanced age, has dementia or Alzheimer’s or has mental or psychological impairments. The adult will need help getting around, making decisions, paying bills or taking medication. The guardian helps with these concerns.

The Guardianship Explained

Whether the judge appoints a guardianship or a conservatorship, a guardian obtains control over the situation. This legal relationship in a guardianship is given the power to oversee and have authority over personal and medical matters and decisions of the person. This adult usually is unable to make decisions due to incapacitation or incompetence. Some adults are recovering from injuries and cannot make the necessary judgment for certain issues. Others have an impairment or a mental handicap that prevents them from understanding and administering medical treatment or medication. Other important factors include the inability to remain safe or keep living arrangements suitable.

The Conservatorship Explained

The guardian in a conservatorship is similarly appointed by the judge. However, instead of medical matters, this person takes control of financial decisions for the incompetent or incapacitated estate owner. This conservator or guardian will manage many different finances such as the estate investments, paying bills, collecting and paying off debts and managing revenue from various cash flows into the estate. This could also include a business, partnerships and trusts that may require management or monitoring. If the adult needs certain other items paid such as healthcare or treatment, the conservator may administer the transfer of money from the estate accounts to doctors or therapists.

The Primary Difference

While the general guardian is often similar, the primary difference in a conservator and the guardian is that one only covers a specific matter with the adult that needs help. The elderly or person in retirement may need different needs based on the estate or health matters. However, in either situation, the adult may remain in a coma, go through recovery in a hospital or stay in an elderly facility such as a retirement home. In a conservatorship, the conservator takes care of financial matters. Guardianships have guardians that take care of health-related issues. Most of the other matters are either similar or related.
Appointing the Person

In the usual situation, the adult faces the courts appointing the person to take over the financial or medical matters. However, he or she may appoint an individual personally, through paperwork or in a living will. Durable and medical power of attorney may also provide some semblance of control over these issues. The adult may need to speak to the judge that oversees the matter. If this is not possible, the judge may take the living will or power of attorney into account if the person appointed has a background sufficient to oversee the specific issue.

Legal Help in Conservatorship and Guardianships

A lawyer may need to draft or review a living will or power of attorney to help appoint someone specific for the adult in the conservatorship or guardianship. The legal professional’s assistance may increase the chances that the judge will appoint the specific person the adult wants to take over.

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Disclaimer: Every effort has been made to ensure the accuracy of this publication at the time it was written. It is not intended to provide legal advice or suggest a guaranteed outcome as individual situations will differ and the law may have changed since publication. Readers considering legal action should consult with an experienced lawyer to understand current laws they may affect a case.

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