The Difference Between Conservatorship vs. Guardianship

Learn about the legal differences between conservatorship and guardianship for aging family members and the responsibilities of a guardian and conservator. Understand how the terms are used in different states and the importance of planning ahead with legal paperwork.

The Difference Between Conservatorship vs. Guardianship
Do you know the difference between Conservatorship and Guardianship

There is a big difference between the terms conservatorship vs. guardianship.

In some states, it is used interchangeably. Let me explain.

There comes a time with an aging family member develops signs and symptoms of dementia. Over time, as the disease progress, they become unable to take care of themselves, or make decisions that are in their best interest. A change in living in a home independently is no longer an option,( unable to handle financial affairs, make decisions on medical treatment etc).  A move to an alternative setting for safety reasons must be made.

That decision is usually made by the person that is handling their affairs. In an ideal situation, the person that will be responsible for making these types of decisions and have put the necessary legal paperwork into place: a POA of health care and finances and an advanced directive.    It would save the aging family member lots of money to have things put in place before hand. There are many family caregivers that have tried and failed to get this paperwork done, but, failed, due to the lack of cooperation of their aging family member.

How do you know if someone is incompetent?

Then suddenly there has been a rapid decline in the mental status of your family member, a stroke or aneurysm, occurs and is not longer able to make decisions. If your family member did not get the paper work done ahead of time, this could be a long and costly process for you to pursue conservatorship and guardianship.

The first step is to get a doctor to determine that your family member is “incapacitated”. Depending on the doctor, this could take as long a 3 or 4 weeks. The doctors opinion is then filed with the court along with the petition to file for conservatorship and guardianship. If there is a need for a quick, temporary guardianship /and, or conservatorship it can not only be very expensive, it can be very stressful.

If there are  family members that will contest or fight for guardianship or conservatorship, it could get very costly. In this case, the court will get involved and establish some sort of “guardianship”.  “A guardian of the person is responsible for decisions about the care provisions and living arrangements of the aging senior. A guardian of the estate, also known as a conservator, is in charge of  the seniors property and financial affairs.

What is the Difference Between Conservatorship vs. Guardianship ? continued….

Just as there is a POA, power of attorney for health care and financial decisions, there will be a guardian and a conservator. The terms “guardian” and “conservator” are used interchangeably in different states.

The term can be applied to both health and financial situations. In other states, there is a distinction between the 2 terms. When doing your homework on this subject. make sure you understand how the terms are used in your state.

What are the responsibilities of a Guardian?

Every state is different, but, a court may appoint one person to assume control lever the aging seniors health care issues and concerns, place of residence, as well as finances. This is called plenary guardianship. There are state laws that limit the court appointed guardians authority. This means that the guardian and require prior approval for certain decisions that are made. Depending on the state you live in, you may or may not need approval of the court to move a senior to an alternative setting, such as a nursing home, or authorize major medical treatment. It is expected that the actions and decisions of the guardian must be in the best interest of the aging senior.

Conservator (guardian of the estate)

A conservator, or the guardian of the estate,monitors and manages the financial affairs of the aging senior. It is the responsibility  of the conservator preserve and dispose of the aging seniors estate in accordance with the law. This is also to be done  in the best interest of the aging senior.

The conservator has the obligation to use the assets of the estate , and “spend down” responsibly, to ensure the best care and maintenance of the aging senior. Of course, the conservator, is legally bound to support and follow legal parameters. The conservator, generally, is given the authority to make decisions on the aging seniors property and estate, just  as if the conservator was the owner. Of course, the state law may set some limits. For example, some states do not allow a conservator to execute a will on the aging seniors behalf. Depending on the State laws a conservator may or may not be permitted to transfer assets for such things as to qualify for Medicaid.

Have more questions? Check out the Frequently Asked Question section of the website. You will find a lot of different questions answered directly.

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