Every adult is assumed capable of making decisions for their own wellbeing until proven otherwise.
But if your loved one is seriously mentally or physically incapacitated, a court may appoint a conservator or guardian to tend to their wellbeing and make decisions on their behalf.
If you’re wondering the difference in a conservator vs guardianship and which one is best for your loved one, keep reading to find out more.
What Is Conservatorship?
First, let’s start with a conservatorship.
A conservatorship is a legal case in which a judge grants legal responsibility to a person or organization (the conservator) to care for another adult who cannot manage their own finances due to illness, injury, or disability.
In some states, this proceeding is voluntary. The court must decide that the conservatee (the person receiving help) cannot manage their finances independently but is nonetheless capable of making the decision to have a conservator help them.
Responsibilities
A conservator has several responsibilities, but they generally center around finances.
For example, if the conservatee has any liquid assets, the conservator would be responsible for deciding whether the funds should be invested and who will be responsible for managing that process. The conservator may manage their personally or seek the help of an advisor.
The conservator will also be responsible for more basic financial maintenance, such as paying bills on their ward’s behalf. If the conservatee has more significant assets, the conservator may be charged with deciding whether real estate and other tangible property should be bought, held, or sold.
Pros and Cons
If a person is otherwise healthy but cannot handle their financial assets on their own, then a conservatorship may be a practical alternative to guardianship.
All conservators are subject to court supervision to prevent mishandling of funds, which provides a degree of protection to the incapacitated individual. In addition, conservators must submit regular reports of their actions and must seek court approval before making major decisions such as selling real estate.
On the other hand, conservatorships can be a lengthy legal process, requiring extensive court hearings and the continued presence of an experienced conservatorship attorney.
What Is Guardianship?
Most people are more familiar with the concept of legal guardianship, in which a court appoints a suitable decision-maker to step in if an adult is found to be unable to make decisions in certain areas of their life.
In principle, the role of guardian is quite similar to a conservator–sometimes, a court will appoint the same person to serve in both roles. However, the focus and responsibilities of each role are different.
Responsibilities
Where a conservator focuses almost exclusively on the financial aspects of a person’s life, a guardian may be awarded legal decision-making power in any area where the ward is deemed unable to make decisions on their own.
In general, a guardian is responsible for their ward’s personal care, which can include things like medical decisions and legal decisions. For example, a guardian may decide where their ward should live, such as a nursing home or with an in-home caregiver.
The guardian may also make medical decisions on their ward’s behalf, though their power on this front depends on the state.
Like a conservator, a guardian will often be required to report actions taken on behalf of their ward to a court, though the actions that need approval vary based on the state in question.
Pros and Cons
In general, a guardian is a good choice for an individual who needs someone to attend to various areas of their life, from healthcare to finances.
A guardian can offer peace of mind to family members by giving their ward a degree of protection against those who would take advantage of them. They may also act as a buffer if family members cannot agree on care.
That said, they may also cause conflict between family members who cannot agree on a course of care, especially if those family members do not agree with the guardian’s decisions.
And as with conservatorships, guardianship is a costly and expensive legal process requiring several court hearings and an experienced lawyer.
Conservator vs Guardianship
Knowing all of this about conservatorships and guardianships, let’s talk about a few key differences between the two.
The single biggest difference is the focus of the role. Conservators focus almost exclusively on managing the finances of their conservatee, while guardians serve a more all-encompassing role to care for their ward.
This difference will change which person your loved one may be assigned in a court hearing. Furthermore, the capabilities of your loved one will change which role is assigned to them.
Outside of that main difference, the disparities between a guardian and a conservator lie mostly in their reporting requirements and the decisions a court will authorize them to make.
Which One Do You Need?
So, which one does your loved one need? That depends on your loved one’s needs.
Let’s say your loved one suffered a head injury. They are entirely capable of driving, engaging in social activities, tending to their personal care, and making decisions with regards to their health. However, they have no remaining ability to handle numbers or math.
In that case, a court would assign a conservator.
Now, let’s say that your loved one has a serious disability. They are not able to tend to their personal needs or advocate for themselves, whether it’s their health, their finances, or any other aspect of their lives. In a case like that, a court would assign a guardian and may also assign a conservator.
The only instance where someone might need a guardian but not a conservator is if they have no significant assets of their own, like someone who relies entirely on Social Security and has no other source of income.
Need More Legal Advice?
Knowing the difference between a conservator vs guardianship is a big deal when it comes to making informed decisions for your loved one.
If you need more legal advice, check out our blog for more posts, like this one on how to without losing your business.
