Guardianship v Conservatorship

Frequently, we are asked what the difference between a conservatorship and a guardianship is. This is often followed up why do I need both. These are excellent questions to ask when considering what to do for your loved one whose memory is failing, has a disability that limits his own decision making, or has addiction that impacts his life. The court refers to the individual as “incapacitated.” A conservatorship and a guardianship are not the same, although both require the court to appoint an individual to act.

First, a conservatorship is when the court appoints one or more persons to manage the financial assets and to make financial decisions for the benefit of the incapacitated individual. The authority granted by the court will allow the person to pay the monthly bills, manage the bank accounts, manage stock or brokerage accounts, file tax returns, and secure insurance, whether as a government benefit or privately.

Second, a guardian is when the court grants authority to one or more persons to make personal and health-related decisions on behalf of someone who has been deemed to be incapacitated. The guardian will be allowed to make decisions regarding medical care, living arrangements, and safety for the incapacitated individual.

Finally, the court may appoint the same person to fulfill both roles for the incapacitated individual. This is often the most efficient way to care for an incapacitated individual. However, if there is a family conflict on who should be the conservator or guardian, the court can in its discretion appoint one person as conservator and another individual as the guardian. This is done in hopes of providing some checks and balances to the accusations raised by competing family members over the ability to care for the incapacitated individual. If there is an estate plan in place, the court can decide to appoint the individuals named in the Durable Power of Attorney and the Patient Advocate Designation since these documents indicate who the incapacitated individual wanted to make these decisions when this need arose. If your loved one needs someone to make their decisions and failed to create an estate plan, we will guide you through the process of becoming appointed by the court as the conservator and guardian. If your loved one already has an estate plan, we will guide through what actions you need to take, including whether you need to file for conservatorship or guardianship. Call today to schedule your Pre-engagement meeting.