Guardianship and conservatorship are two terms that are easy to mix up. Without universally agreed-upon definitions and rules that vary by state, it's challenging to understand the differences, let alone know the best option for your specific situation.
Below, we'll discuss the key benefits and differences between guardianship and conservatorship so you can make an informed decision for the care of your loved one.
The Different Types of Guardianships and Conservatorships
Guardianships and conservatorships are estate planning tools that help people who can no longer make decisions for themselves. A guardianship typically permits someone to make personal and health-related decisions on another's behalf, while conservatorships assist with financial decision-making.
When deciding whether guardianship or conservatorship is suitable for your situation, you should think about the type of support your loved one needs. Let's explore some of the different options available.
Legal Guardianship
When someone applies for legal guardianship, they request that a judge give them the authority to make decisions on another's behalf – typically an incapacitated adult or a minor child.
In some states, this proceeding is called guardianship, and in other states, it is called conservatorship.
Guardianship of an Adult
Sometimes, due to an adult's diminished or lack of capacity, it becomes necessary for a court to rule an adult incompetent and appoint someone as their legal guardian. Filing for guardianship is a serious proceeding you should approach carefully – as it takes away someone's ability to make decisions for themselves.
However, in cases where an adult has become incapacitated due to an accident, illness, or other condition, guardianship may be the best way to ensure they receive proper care.
Pros and Cons of Adult Guardianship
Let's take a closer look at the pros and cons of adult guardianship.
Pros:
- If the proper guardian or conservator is appointed, it means they will make decisions in the conservatee’s best interest.
- Provides a forum for disputes among family members if there is a disagreement about the person's care under guardianship.
- Guardianship proceedings bring everything out into the open, so the courts can ensure the incapacitated person’s interests are being honored.
Cons:
- The person subject to guardianship or conservatorship may contest it (like we saw in the case of Britney Spears).
- Filing for guardianship can be a complicated and expensive process.
- Guardianship proceedings are a matter of public record, so they are not ideal if you value privacy.
Legal Guardianship for Minors
When a parent with one or more minor children passes away, it is often necessary to establish guardianship for the minor child.
Establishing a trustworthy legal guardian is especially important when considering that minor children do not have the legal capacity to accept an inheritance.
Unless an inheritance is in a trust for a minor, a court will be required to name a legal guardian to oversee the estate until the minor child reaches the age of majority.
Conservatorship vs Guardianship
The main difference between conservatorships and guardianships is the level of decision-making authority granted. For example, conservatorships are generally more limiting and may only permit the conservator to make financial-related decisions.
Guardianships – on the other hand – are far broader, granting the guardian a wide range of personal and health-related decision-making abilities.
Some instances where a conservatorship or guardianship for a loved one may become necessary are:
- Cognitive decline due to Alzheimer's or another dementia-related diagnosis
- Incapacitation due to an injury or illness
- To manage the care of an adult with a developmental disability
General Conservatorship vs Limited Conservatorship
There are two main types of conservatorships: general and limited.
General Conservatorship
Under a general conservatorship, a judge appoints someone to manage the affairs of an adult who can no longer care for themselves – typically due to diminished mental or physical capacity.
Limited Conservatorship
Limited conservatorships are generally established for adults with developmental disabilities that can live and make decisions independently for the most part and only need some support.
There are two different types of limited conservatorships:
Limited Conservatorship of the Estate
This type of authorization permits the conservator to handle the conservatee's financial affairs.
Limited Conservatorship of the Person
In this case, the conservator manages the personal needs of the conservatee. This option may suit your situation if the conservatee needs assistance beyond financial matters.
Typical decisions a conservator may make on behalf of a conservatee include:
- Paying bills
- Making investment choices
- Deciding whether to sell real estate
Again, these terms and definitions vary by state, so it's essential to review the rules in your state and consult with a local attorney.
How Much Does It Cost to File for Guardianship or Conservatorship?
Before making your decision to file for guardianship or conservatorship, it's essential to consider all the costs involved, such as:
- Attorney fees
- Court filing fees
- Annual reporting fees
Prices will vary based on the state you're in and the attorney you decide to hire. Though guardianship and conservatorship proceedings can be expensive, we don't recommend filing without the assistance of a lawyer – as the rules and paperwork can get quite complex.
How To Avoid Being the Subject of a Guardianship or Conservatorship
You can avoid becoming the subject of guardianship or conservatorship with proper planning.
If you want to avoid guardianship or conservatorship, be sure to designate people that you trust as your agent and alternate agent on your power of attorney and health care legal documents, such as your advance health directive and HIPAA authorization.
Having your power of attorney and health care legal documents in place will help you avoid costly guardianship or conservatorship proceedings.
Final Thoughts
It's critical to be proactive with your estate planning, such as having the proper forms in place in the event you become incapacitated. By filling out your power of attorney and health care legal documents, you get to have a say in your care when it matters most.
If you're unsure whether you have all of the estate planning documents you need, take our free questionnaire to find out.