Conservatorship vs. Guardianship: What Are The Differences?
An estimated 10.8% of Americans have some cognitive disability that impairs their thinking and decision-making, such as Alzheimer’s dementia. This figure increases in the elderly, with 6.2 million or 11.3% of the elderly suffering from Alzheimer’s dementia, making it one of the most widespread cognitive disabilities amongst adults.
Symptoms of impairments such as Alzheimer’s dementia include memory loss and language problems, worsening over time. As the impairment progresses, the affected person starts losing the ability to make decisions and care for themselves. Loved ones or caregivers must look after the person with such an impairment since they cannot look after themselves. And in many cases, caretakers make vital decisions about a person’s estate.
Having the ability to make such decisions results from gaining guardianship or conservatorship of someone with cognitive impairments. But what do these options mean? And is one necessarily better than the other? Find out more on conservatorship vs. guardianship as we explore the topics below.
What Is a Guardianship?
Many times, a person with cognitive impairments, a severe illness, or a child under the age of 18 cannot make their own legal and medical decisions. They need someone else who can help them out and have their best interest. That’s where a legal guardian comes in.
A legal guardian is someone who can make a range of personal and medical decisions for an adult or a minor. This person is a family member, generally a parent, spouse, sibling, or grown child. They are appointed through a legal process.
The guardian is not necessarily an individual. They can be a non-profit agency or public or private corporation. If two people file for guardianship and are approved by the court, then they can be called co-guardians.
Parents or loved ones who hold guardianship over an adult or child can make the call on a variety of personal and medical decisions for them. These decisions range from assisting them with everyday activities and personal care. Guardians hold the key to ensuring someone’s mental and physical care, from counseling, therapy, medication, and more. They are required to provide nourishment, shelter, protection, and quality education to the dependent.
A guardian is accountable to a court. The court may provide and revoke guardianship if the guardian does not uphold their duty of care or neglects their dependent.
What Is a Conservatorship?
While a guardian takes care of personal and medical activities, a conservator is in charge of their estate. Often, an older adult with dementia, an adult with a severe illness, or a wealthy minor cannot make intelligent and reasonable financial decisions. They might end up spending money on unnecessary items, purchase or sell real estate, and more without the full knowledge of the consequences of such actions.
A conservator, otherwise known as a ward, can help them make healthy and reasonable financial decisions. The ward helps them make investments, estate planning, paying bills, and handling any other financial matters.
An example might be if your grandfather has Alzheimer’s dementia and lives alone. He forgot to pay his water bill, and the city has shut off his water. He might still be capable of making many decisions for his care, such as where to live and when to take his medication, but he cannot make any money-related decisions. A conservator helps with that.
Anyone who can prove their case to a court and is appointed by the court can hold a conservatorship. This includes family members, such as parents, adult children, siblings, or anyone else who can prove that they are of sound mind to have legal authority over another incapacitated person.
Difference Between Conservatorship and Guardianship?
Personal Care vs. Estate Planning
The main difference between conservatorship and guardianship lies in what areas they are legally allowed to make decisions for a dependent. In a guardianship, the guardian decides about a person’s care. Such care includes having the responsibility for and managing services related to a person’s physical and mental health, where they can reside, and more.
In a conservatorship, the conservator or ward is responsible and has the authority to manage the financial duties, property, and other financial affairs and services on behalf of their loved one.
Both guardianship and conservatorship are appointed by a court and overseen by court services, such as a state attorney and social services.
Conservators Have Limited Decision Making
Whereas a guardian can make a wide range of personal decisions for their dependent, starting from managing their health, residency, and determining how they live, a ward’s powers are more limited. The conservator is confined to only managing financial affairs and making property arrangements, so they do not get a say in how the dependent lives. As a result, they are also not responsible for the dependent’s well-being.
Conservators Have More Power in Court
If a person needs someone to look after both their health and finances, a family member or relative can often have both roles in a guardianship and conservatorship. So, one individual can hold both guardianship and conservatorships. This could be parents or other close family members.
But if two different people are acting as guardians and conservators on behalf of the dependent, the conservator holds precedence in courts. There are many instances when the guardian and conservator will not agree on a course of action, so conflicts must be resolved in court and by law. The judge can rule for legal action in favor of each party, but they consider the ward’s financial power, which ultimately determines the course of action.
One individual can act as both a guardian and a conservator for one ward. If a ward has two different people acting as their guardian and conservator, the conservator ultimately holds more power over the ward’s life and estate. Conflicts between the two duties can be mediated in court, and a judge, who would determine an appropriate course of action in the ward’s best interests, will guide those rulings.
Should You Choose a Conservatorship or a Guardianship?
If you are wondering whether to choose a conservatorship or guardianship, you should look at the person’s situation and health. Naming a guardian or conservator both require legal action, and both are accountable to the court. In the eyes of the law, they are both responsible but with differences in aspects of duties.
If you’re looking to decide which course of action to take, file for guardianship if:
- The person is a minor
- The person has a severe cognitive illness or disability and cannot make decisions for themselves
- The person is elderly with mental disabilities and cannot properly take care of themselves
You should file for a conservatorship if:
- The person is a minor with significant financial assets.
- The person has serious cognitive disabilities and is being reckless with their financial responsibilities
- The person is elderly with cognitive disabilities and cannot determine the best course of action to manage their assets
How to Become a Guardian or Conservator?
Get an Attorney
The process of obtaining guardianship or conservatorship requires legal advice from a law firm or attorneys. If you are looking to start this process, you should get an attorney to advise you on the applicable law and any other regulations regarding conservatorships or guardianships.
File a Petition With the State’s Court
Your attorneys should then file a petition with the state’s probate court. The petition asks the court to hold a hearing to determine whether someone is incapacitated and whether they require a guardian or conservator.
Many states have set rules and regulations about when to declare someone incapacitated. They are different in each state, but the central premise is that a person must show the lack of capacity to make sound choices for themselves. Reckless spending or simply having a mental illness is not enough to declare someone incompetent. There should be consistent incapacity to properly live without endangering themselves for you to make a case that someone needs to appoint a guardian or conservator.
Attend the Hearing
Depending on the state’s rules, the people present during the hearing should be:
- The judge
- The person filing to claim guardianship or conservatorship
- The incapacitated person
- Attorneys of the person filing the petition and the incapacitated person (if the person who is incapacitated does not have an attorney, the court can decide to appoint one)
During the hearing, the judge will hear arguments and consultation proving the person is incapable of managing their health or finances. Once incapacity is determined, and after consultation with attorneys, the judge will decide at the end.
Report Periodically
Once someone retains conservatorship or guardianship, they have to regularly report to the court that they are holding their responsibility for the dependent. Reports include:
- Proof of adequate residential arrangements
- Evidence of sufficient healthcare and treatment
- Evidence of available education or training programs, etc.
Other Options in Addition to Conservatorship and Guardianship
Power of Attorney
A power of attorney grants legal rights and powers from one person to another. The one holding a power of attorney can make financial or business decisions for another person.
Representative or Protective Payee
This individual manages someone else’s Veterans’ Administration, Social Security, Railroad Retirement, welfare, or any other benefits on behalf of someone else.
Revocable Trust
A revocable or living trust allows relatives, family members, or others to hold someone else’s assets.
Medical Proxy or Medical POA
A medical proxy is someone appointed to make future medical decisions for another person who cannot make them.
Advance Directive
An Advance Directive is a document which state’s a person’s treatment preferences, such as tube feeding, resuscitation, and life support. It allows them to make end-of-life choices so that you, as their loved one, know what action to take if their health comes to that point.
Find Suitable Care Options for Your Loved Ones at 24 Hour Home Care
With an increasing number of people with mental or cognitive impairments who cannot make their health or financial decisions, conservatorships and guardianships are also required.
The difference between the two is that a guardian makes personal and health decisions for another person, while a conservator or ward is in charge of their finances. Both have to be appointed by law in a court, but one key difference is that the ward may hold precedence in certain decisions.
If you are a ward or guardian and are looking to make the best choices for your loved ones, consider 24 Hour Home Care. We specialize in various services for elderly and disability care, ranging from companionship, personal care, respite care, and more.
You can trust us to make your loved ones comfortable and cared for, so get in touch with us today!