I am often asked what the difference is between guardianship and conservatorship. People are often confused between the roles of a guardian and conservator when protecting the interests of an older person who may not be able to care for themselves.
A Guardian is an individual who is legally responsible for the food, health care, housing and other necessities of a person who is deemed fully or partially incapable of providing these for himself.
A Conservator is legally responsible for the assets and finances of a person deemed fully or partially incapable of taking care of these items for themselves.
Both may be appointed by the court.
Guardianship may be necessary to meet the specific needs of a person who has some incapacity such as a physical or mental problem that prevents them from managing some part or all of their personal affairs. For example, a person may be able to make decisions about their care but not be able to pay their bills. The powers of a guardian can include:
-Paying bills
-Preventing self neglect (taking care of activities of daily living, arranging for proper medical care, housekeeping, etc. If they are not able to do so, they can place a person in a safe, appropriate environment such as assisted living.
-Stopping financial abuse or physical abuse
-Participate in Medicaid and tax planning on their behalf
Almost anyone can petition the court to appoint a guardian. Usually, the court will first appoint a court evaluator who will conduct an investigation and provide an opinion as to whether or not the guardian is necessary. A hearing date would then be set and at the hearing evidence must be presented to prove that the incapacitated person is incapable of managing certain aspects of their personal and/or financial affairs. Anyone who is opposed to the appointment of a guardian is also given an opportunity to present their evidence.
A Conservator is also appointed via a petition filed with the court and the court will also arrange for an evaluation. The court evaluator will meet with allegedly incapacitated person and inform them of their legal rights. The evaluator may appoint a doctor or other professional to examine the person and provide a professional assessment.
If a person contests the appointment of conservator, a trial will be held at which time each side can provide evidence and the judge will make the decision.
Court appointed guardians and conservators must file detailed reports with the court which explain in detail the status of the incapacitated person, a list of assets and all income and disbursements made on their behalf. The incapacitated person must be allowed to participate in decisions to the extent they are able.
Both conservators and guardians are usually required to be bonded.
There will be supervision by the court to ensure that assets are being properly managed, bills are paid and there is no misappropriation of funds. Often conservators must get permission in advance before making major transactions such as the sale of a home.
If the incapacity ends, the court can terminate the conservatorship.
You can avoid having a guardian or conservator appointed for you by having your attorney prepare a durable power of attorney. This will permit a trusted individual to manage your personal affairs in the event of your temporary or long term incapacity.
There are legal rights for individuals under the protection of a guardian or conservator. For more information, see:
