If an adult is incapable of making decisions about their finances and healthcare, someone else will have to make those decisions for them. The person or people in that role are appointed by a court. Conservatorship is a legal arrangement where a person or people handle a conservatee’s finances, while guardianship is a similar arrangement where the court appoints a person or people to make healthcare-related decisions on behalf of an individual, sometimes referred to as a ward.
The terms can differ from state to state. In some states, conservatorships are called adult guardianships. The roles do have a lot in common but with some key differences. Because of the differences, it is important to name both a conservator and a guardian in an estate plan.
Appointing a Conservator or Guardian
A conservatorship or guardianship may be appointed for a child whose parents can no longer care for them. Such a circumstance can arise because of death or illness. They may also be necessary for an adult who has been injured or suffered another health event that has resulted in them being incapacitated. More commonly, conservatorships and guardianships are necessary for older people dealing with mental incapacity due to age. For example, someone with a mental disability because of Alzheimer’s disease may have a guardianship appointed on their behalf.
Conservators and guardians are not always court-appointed. In some cases, the individual in whose name the decisions will be made can choose the conservator or guardian. If they state their wishes in a living will or other document such as a durable power of attorney or medical power of attorney, the court will usually appoint that person as long as they can perform the role. The court can also appoint the same person as both guardian and conservator in some instances or multiple people in each role. If there is more than one person in the conservatorship or guardianship role, each will have an equal say in the decisions.
A conservator’s responsibility is to manage finances. They will make decisions regarding the conservatee’s bank accounts, bill payments, and debts. All the cash going into their estate and out of it will be controlled by the conservatorship. The court will require a conservator to keep detailed records and file papers with the court regularly. They will be supervised by the court to ensure that they do not mismanage the conservatee’s finances. The court may require them to request permission before they make major decisions.
A guardian makes decisions related to an individual’s healthcare when a court has determined the ward to be incompetent. The guardian may be called on to make decisions about matters like medical treatment and living arrangements. Like conservators, the court requires guardians to file papers regularly. The guardian is obliged to inform the court about their ward’s well-being. The report will include information on the ward’s current condition as well as on the services that have been provided to them.
Proper estate planning can prevent the need for court-appointed conservators or guardians. If there is no instruction, the court may appoint someone that the conservatee or ward would never choose to handle finances or make important healthcare decisions.