Understandably, some people may be confused by the terms conservatorship and guardianship, which can be used to describe authority over two different things. However, in the U.S., there is no uniform federally mandated definition for the two terms. The states determine how they choose to use these terms, and who gets described as either a conservator or a guardian.
Jump ahead to these sections:
- The Basics: Guardianship vs. Conservatorship
- Guardian vs. Conservator: What’s Their Purpose?
- Guardian vs. Conservator: What Are Their Duties?
- Guardian vs. Conservator: How Do You Appoint One?
If you are considering guardianship or conservatorship for a loved one, you are probably under some stress. Dealing with a family member who can’t manage some aspect of their lives means that you are trying to find the best way to keep them safe. Add to that hardship the confusing terms used to describe the authority you need to make decisions, and you end up with an overwhelming situation.
For this article’s purposes, we will use the term guardian to describe authority over healthcare and housing, and conservator to describe authority over the estate.
The Basics: Guardianship vs. Conservatorship
In some states, conservatorships are called guardianships. In other states, the term guardianship is used to describe both conservatorship and guardianship, and other states separate the terms. For example, in Utah, you can be appointed guardian and/or conservator.
You may hear the terms: conservator of the estate, conservator of the person, guardianship of the person, or guardianship of the estate. A person or an entity can be appointed guardian or conservator, or both. It is not uncommon for a family member to be appointed guardian and a company to take on conservatorship responsibilities.
You don’t want to go headlong into a court process before you feel confident that you are making the right decision. Attorneys who specialize in guardianship and conservatorship have experience in knowing what you need, how to get it, and whether your petition has merit.
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Guardian vs. Conservator: What’s Their Purpose?
Since obtaining guardianship or conservatorship requires going to court, it is crucial to understand the purpose of such a request. At its most basic, petitioning the court for guardianship and/or conservatorship means taking someone’s rights away. It is a big step to take, and one that might be necessary. Let’s look at each category separately and what they mean.
There are some circumstances where conservatorship of the estate is needed, but guardianship is not and vise versa. Also, limited conservatorships and guardianships allow the court to confer specific responsibilities to the appointed conservator or guardian. This also gives the protected person the ability to make some decisions under their own authority.
For example, someone may have the ability to manage and make decisions about their healthcare. Yet, they may not have the capacity to manage their finances. In this case, the court may decide to appoint someone or a company as a conservator but allow that person authority over their healthcare and housing. If the situation changes, this decision can be revisited at a later time.
The purpose of guardianship
Guardianship, by definition, means assuming authority over someone’s healthcare and housing choices. The purpose is to protect someone who does not have the capacity to make informed and safe decisions for themselves.
The responsibility conferred upon a guardian requires a court hearing to decide whether the proposed protected person cannot make their own choices. In short, the purpose of guardianship is to advocate, inform, protect, and report on a person’s well-being.
A person could be incapacitated due to several permanent or temporary conditions. These include:
- Mental health conditions such as schizophrenia, depression, bipolar disorder
- Neurological conditions such as Lou Gehrig’s Disease (also known as ALS), Parkinson’s disease, stroke, or Multiple Sclerosis
- Alcoholism or drug abuse/addiction
- Head trauma
- Intellectual disabilities
The purpose of conservatorship
The purpose of conservatorship is to protect someone’s assets and estate. The level of responsibility and commitment is the same as with guardianship. The same conditions listed for guardianship can lead to the need for a conservatorship.
One of the main differences with conservatorship is the circumstances that sometimes lead a family to have cause for concern. Here are a few common examples of what someone may do:
- Give away large amounts of money to strangers or a caregiver.
- Succumb to fraudulent scams or identity theft.
- Mismanage funds by failing to pay bills on time resulting in poor credit and/or discontinued services like utilities.
- Favor one child over another financially. This could be a legitimate action or one attributed to undue influence by that family member.
- Make questionable or risky investments without proper guidance or advice.
People make bad financial decisions all of the time and aren’t under a conservatorship. The question is whether they have a condition, verified by a physician, that may compromise their decision-making.
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Guardian vs. Conservator: What Are Their Duties?
There are some distinct differences in managing healthcare and housing decisions versus managing someone’s estate. If you are managing both, the duties and responsibilities can be very time-consuming. Some people are uncomfortable managing finances and turn these duties over to a company to handle.
If you think about all the healthcare and housing decisions you make for yourself, you will get some idea of the scope of responsibility in becoming a guardian. In every case, your decisions should reflect not just what is convenient, but also what is in the best interest of the person you are protecting. If your aging parent refuses your help, you may choose to go down this route. Guardianship duties can include the following responsibilities:
- Manage all aspects of healthcare, including preventative care and doctor’s appointments. This includes optometry, ophthalmology, dermatology, audiology, and any other specialty practices.
- Consent to surgeries and other medical treatments along with hospitalization.
- Put in place supportive services such as private caregivers, home health, and hospice when appropriate.
- Decide on safe housing options. Move the protected person when necessary.
- Consent to mental health and psychiatric treatment or hospitalization.
- Make efforts to enhance the well-being of the protected person.
- Make yearly (or more often as needed) reports to the court on the protected person’s well-being.
When looking at a conservatorship, there are many things to keep in mind as well. While both a guardianship and a conservatorship take care of a person, the differences lie in the financial or medical portions of their lives. Here are some of the duties that a conservatorship requires:
Protecting someone’s estate may also have some far-reaching ramifications. Without adequate funds, they may be unable to pay for the care and support they deserve and need. Preserving someone’s assets is protecting them and their family for the future. Conservators have a duty to do the following:
- Do a complete inventory of the estate and present this to the court.
- Protect the person’s estate from fraud and exploitation.
- Pay bills.
- Settle any outstanding debt.
- Make responsible investments.
- Pay for all living and medical expenses to ensure a person’s health and safety.
- Provide the court with a yearly accounting of income and expenses.
As you can see, having complete control of someone’s finances could lead to exploitation of the estate. Each state has protocols in place to protect against this, but it can and has happened.
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Guardian vs. Conservator: How Do You Appoint One?
The process for appointing a guardian and conservator is the same. Anyone can petition the court for either guardianship or conservatorship, or both. If a family member petitions the court and there is an objection by another family member on reasonable grounds, the judge may refer the case to mediation. Here is the general process.
The first step any family member should take when considering guardianship or conservatorship is to consider possible alternatives. These could include power of attorney or setting up a trust. That way, a person’s decision-making ability is preserved with some processes in place to advocate and protect the person should the need arise. Keep in mind that the process of obtaining guardianship and conservatorship can get expensive. Next steps:
- Meet with an attorney. Hiring an attorney is not necessary but may save you time and stress.
- Talk with other family members and the proposed protected person about your plans and the process.
- Obtain the support documents for your petition. Documents will most certainly include a letter of competency from a physician or psychiatrist. It might also include any reports made to Adult Protective Services.
- File a petition with the court.
- The court serves written notification of the hearing to all interested parties.
- If the proposed protected person does not have legal representation, the court will appoint someone.
- A hearing is scheduled.
- The person seeking guardianship or conservatorship and the proposed protected person must appear at the hearing. If the proposed protected person is unable to attend, they must have a reason to be excused. Some states allow for video conferencing in lieu of in-person attendance for the hearing.
- The judge makes a decision after hearing the evidence and either grants or denies the petition.
- The petition may be denied because the judge does not think the evidence supports guardianship or conservatorship. If a family member objects, the judge might appoint a professional company to assume these duties until the family conflict can be resolved.
There are cases where the proposed protected person may be referred for guardianship and/or conservatorship by Adult Protective Services or other entities. In some unfortunate situations, an elderly adult without family may not have folks available or willing to assume guardianship or conservatorship. If they don’t have sufficient assets to use a professional company, they might be referred to an Office of Public Guardianship.
Depending on the state, the Office of Public Guardianship might have limited capacity due to funding or strict criteria. There are often waitlists in many of these offices, leaving some people without the protection they need.
Deciding on a Conservator or Guardian
The responsibilities and duties of guardianship and conservatorship are significant as outlined above. Whenever possible, consider alternatives to what can be an arduous and expensive process. Protecting a loved one is a noble and ethical endeavor. When feasible, only safeguard those aspects of your loved one’s life that require it.