Conservatorship vs Guardianship: What’s the Difference?
As our loved ones age, they sometimes lose the ability to take care of themselves, both in lifestyle and finances. In these cases, appointing a guardian or a conservator might become necessary.
Both of these roles can be scary on the surface, but they serve an important function if our loved ones can no longer carry on alone. Here’s what you need to know regarding conservatorship vs guardianship.
Why Consider a Guardian or Conservator?
A guardian and/or a conservator may help manage a loved one’s affairs so they can maintain proper care and a high quality of life. It is a difficult conversation to have with those needing additional support, and, in the case of dementia, a guardian or conservator may be the only choice to get the support needed to manage a person’s affairs.
There are also certain circumstances for temporary guardianship, which helps family members or other loved ones have the power to manage emergencies or other difficult situations until they pass.
What is a Guardianship and a Conservatorship?
Guardians and conservators are both roles designed to take care of the affairs of an incapacitated individual, meaning the person isn’t able to manage their affairs on their own. The court appoints another person as a legal guardian or conservator who is given legal authority over the person’s affairs. This could include custodial care, personal matters, medical care, and financial decisions. Nonetheless, the role is generally specific on the affairs it includes, whether it is limited or more encompassing.
This type of legal guardian has other applications, such as when a court appoints a guardian of a minor child, but this article focuses on older adults. This is an important topic in the senior health and living arena because many seniors, over time, lose their ability to manage their affairs properly. This is especially true in the case of people with cognitive impairment, which could be due to dementia or Alzheimer’s disease. Impairment could also happen in cases of mental illness, a chronic illness or condition, or injury that impacts how well the person can manage their care and decisions.
While the role varies regarding its duties, the guardian or conservator may:
- Pay bills for the ward
- Manage the person’s social security benefits
- Handle day-to-day decisions
- Make medical decisions
- Manage personal affairs
- Hire a caregiver or put the person into a nursing home
- Manage a budget and other financial affairs
What is a Guardian?
A guardian tends to have a more specific role than a conservator. In simple terms, a guardian is someone appointed by the probate court to make decisions on behalf of their charge, known as a ward, regarding their care. They are to ensure that care is being given to their ward and that they are comfortable.
A guardian may be a spouse, family member, or other adult that the ward would deem suitable. If no one is available, the court has the ability to appoint a professional guardian.
A ward or someone interested in the ward’s welfare can petition the probate court to request a replacement guardian. If the court feels it is in the ward’s best interests, the court can appoint another person to take over. If the ward feels they no longer need a guardian, they can also petition the court to remove the guardianship.
What is a Conservator?
A conservator is someone who is appointed by the probate court to oversee a person’s finances and property.
Like a guardian, a person may select their conservator, have the same person designated as both a guardian and conservator, and may replace them if they feel the conservator is not acting in their best interest. A conservator is restricted in how they can spend their ward’s money, as it must be used for care and support.
The conservator cannot sell a house or any other property without court approval. They must also keep a record of how they are spending the money and file these records with the court.
Other Types of Guardianship or Conservatorship
There are additional forms of guardianship and conservatorship roles that fit specific circumstances. These include:
Temporary guardian: In this case, a person is appointed by the court only for a certain amount of time to achieve a certain purpose, and at the end of that, the guardianship ends. A specific type of temporary guardianship is an emergency guardian, which comes in place due to an emergency situation. This guardianship is for a limited time until the emergency situation is resolved. In the case of an older adult, someone might create an emergency guardian petition for situations like financial misuse or senior abuse.
Limited guardianship or limited conservatorship: The name tends to vary by state, but this type of role specifies a certain area over which the guardian or conservator has control, such as healthcare, and then they do not control other areas, such as finances. A court order can end the limited conservatorship or guardianship. Otherwise, it stays in place.
State-by-State Differences in Conservatorship vs Guardianship
Keep in mind that the role the guardian or conservator encompasses differs by the state they live in.
For instance, some states only give the person limited powers, while others may give broad ones.
Some states allow you to have a person appointed as a guardian and a conservator appointed simultaneously, each managing a different part of the person’s life.
It’s common for states to define guardianship as being in charge of day-to-day decisions and personal affairs, while conservatorship is defined as being in charge of financial affairs; states may use the terms interchangeably or have their own specific definition with defined roles for each.
If you are considering guardianship or conservatorship for yourself or someone else, you should learn more about how these roles work in your state before deciding to appoint one.
How to Start the Process
To learn more about guardianship and conservatorship and which may be right for your situation, consult a lawyer on how best to proceed. Also, ensure you understand how it works in your state before moving forward, as the process and legal proceedings differ by state, just as the definition and roles do.
In general, family members, various loved ones, a local or state government agency, or the individual can start a guardianship petition or conservatorship petition. As part of this process, which tends to be time-consuming, you need to follow certain steps, including providing information and informing the senior. Then, there will be a guardianship or conservatorship hearing, during which a judge may or may not grant it.
A guardianship or conservatorship is not the only option when a person cannot manage their own affairs. At the guardianship or conservatorship hearing, one reason the judge may deny it is if an alternative would work instead. In general, legal guardianship is only used if something like a power of attorney, living will, or living trust—or a combination—won’t provide a solution.
Support Finding Senior Living
If you have become a guardian or conservator of an aging adult, you may need to make decisions about the person’s living situation and care. For example, you might need to decide whether to hire home care or move the person to an assisted living community or skilled nursing facility.
If you need assistance finding a senior living community, CarePatrol is here to help.
Our senior care advisors provide expert guidance and help families choose the best senior care option. From assisted living to nursing homes, our local senior care advisors match your needs with a community in your area. Reach out today to get started.