Conservatorship vs. Guardianship: Key Legal Differences

If you have a loved one who can’t care for themselves, you may be considering a legal arrangement to help them. Conservatorships and guardianships are two common tools used in these situations. We sometimes see these terms used interchangeably. But depending on your jurisdiction, they can have distinct meanings and purposes.

It’s important to keep in mind that state law governs conservatorships and guardianships. This means the specific legal requirements and procedures can vary by state. So, when you’re trying to figure out the best arrangement for someone, you’ll want to consult with a family law attorney licensed in your state. They can help you understand your options and guide you through the process.

In this article, we’ll explore some of the shared principles behind both of these arrangements, along with key legal differences.

Conservatorships

A conservatorship is a legal arrangement where the court appoints a conservator. This person manages the financial affairs and/or daily life of another person. We call this protected person a "conservatee."

Conservatorships are usually set up when the conservatee is an incapacitated individual who’s unable to manage their personal affairs. This may be someone who can’t make their own decisions because of severe cognitive impairments or mental health conditions. It could also be for a person facing physical incapacity to the extent they can’t care for themselves.

We typically see conservatorships for:

• Elderly people with conditions like dementia
• Adults with severe mental illnesses
• People with special needs

You can customize the arrangement with different types of conservatorships.

Full Conservatorships

In a full conservatorship, the conservator's job is to make life decisions in the best interest of the incapacitated person. This may include:

• Medical decisions
• Personal decisions like relocation to a nursing home
• Financial decision-making

In full conservatorships, the conservatee loses most decision-making rights. The court grants the conservator broad authority over most or all aspects of the conservatee's life.

Limited Conservatorships

Limited conservatorships are different. In these arrangements, the conservatee retains some rights and autonomy. We often see these used for adults who can manage some aspects of their lives but need help due to developmental disabilities.

In a limited conservatorship, the court grants the conservator only those powers necessary to assist the conservatee in areas where they need help.

The goal of a limited conservatorship is to preserve the conservatee's independence as much as possible. Courts generally prefer to use the least restrictive option that adequately protects the conservatee while maintaining their rights and dignity as much as possible.

Conservatorship of the Estate

If broad authority over all a conservatee’s financial matters is warranted, a conservatorship of the estate might be another option to consider.

A conservator of the estate refers to someone appointed to specifically manage a conservatee's financial affairs. This often includes property like real estate.

Guardianship

Guardianship is similar to conservatorship. But it typically refers to the care of a minor child. The primary goal of guardianship of a minor is to ensure the child's well-being and protect their interests when their parents are unable to do so.

We call someone under guardianship a “ward.” Under certain circumstances, you can also arrange for guardianship of an adult with severe disabilities or cognitive impairments.

A legal guardian's responsibilities for the ward may include:

• Providing a safe living environment
• Making education decisions
• Consenting to medical care
• Managing finances

Guardianships often emphasize personal care decisions (health, living arrangements) more than financial matters. They may be used for more severely incapacitated adults who need comprehensive care decisions made on their behalf.

Limited Guardianships

You can also establish limited guardianships by court order. In these arrangements, the court specifically defines and limits the legal guardian's authority to those areas in which the ward needs assistance.

Limited guardianships aim to preserve as much of the ward's independence and autonomy as possible while providing necessary support.

Conservators and Guardians

Courts typically consider several factors when appointing a conservator or guardian. Their aim is to choose someone who will act in the best interests of the protected person. The specific criteria may vary by jurisdiction. But courts often prefer family members when suitable. If necessary, however, they'll appoint a professional like a lawyer experienced in elder law or disability rights.

Fiduciary Duty

Both guardians and conservators have a fiduciary duty to the protected person. This means they must act in the best interests of the protected person rather than their own interests.

Compensation

In some cases, guardians and conservators can be paid for their services. When they are, the compensation usually comes from the protected person's assets.

Key Differences Between Conservatorship and Guardianship

The differences between these two arrangements depend heavily on your jurisdiction. For example, some states use:

• Guardianships for personal decisions
• Conservatorships for financial matters

Others may use these terms differently or interchangeably. Some typical distinctions between the two include:

Scope of Legal Authority

Conservators often have more limited authority, focusing on the management of financial matters. Guardians tend to have broader authority. This may include financial management but frequently emphasizes personal care.

Duration

Conservatorships can last for the duration of the conservatee's life. Guardianships for minors usually end when the child turns 18. In some cases, temporary guardianships or conservatorships can be set up for a specific period or purpose.

Legal Process

Conservatorship proceedings and guardianship legal proceedings are subject to distinct rules and can vary by state. Probate courts often handle these matters.

Age of the Protected Person

Conservatorships are typically for adults who have become incapacitated. Guardianships are often used for minors or developmentally disabled adults.

Rights of the Protected Person

In some states, conservatees may retain more rights than wards. For example, a conservatee might keep the right to vote or marry, while an adult ward might not.

Reporting Requirements

State courts supervise guardianships and conservatorships. They usually have different reporting requirements for conservators and legal guardians. Both must regularly report on their actions and the well-being of the person for whom they're caring.  

A guardian or conservator appointed by the court may also serve as the representative payee for the protected person’s Social Security benefits. In such cases, they must also file reports with the Social Security Administration.

Challenging Conservatorships and Guardianships

A protected person or others can petition the court to challenge a conservatorship or guardianship. The legal process varies by jurisdiction. Courts tend to err on the side of protecting vulnerable individuals, but they're increasingly receptive to arguments for less restrictive arrangements.

Potential Alternatives

Both conservatorships and guardianships are serious legal arrangements that significantly impact a person's rights and freedoms. Because of this, courts don't grant them lightly and will often consider less restrictive alternatives.

Durable Power of Attorney (DPOA)

A DPOA can sometimes prevent the need for a conservatorship or guardianship by allowing an individual to designate someone to manage their affairs in advance.

Someone creates a DPOA when they’re still competent. This isn’t usually the case with conservatorships and guardianships. These are typically established after someone becomes incapacitated.

A DPOA can grant similar powers to those given in a conservatorship or guardianship, such as managing finances or making healthcare decisions. A DPOA for medical decisions is often called a healthcare proxy or medical power of attorney.

Some jurisdictions require court validation for DPOAs.

Living Trusts

Similarly, a competent individual may want to plan for potential future incapacity with something called a living trust. These are often part of the estate planning process. In these arrangements, a trustee manages assets if the creator becomes incapacitated.

Unlike conservatorships and guardianships, trusts generally operate without court oversight. They’re considered more private than court-supervised arrangements.

Getting Legal Advice

The most appropriate legal arrangement to meet your loved one’s needs depends heavily on the circumstances and jurisdiction. Because they limit the protected person's rights and freedoms, conservatorships and guardianships should only be pursued when necessary.

If you're considering either of these options, it’s highly advisable to speak with a qualified attorney who can explain all available options. You can speak with them confidentially, and they can help you understand how specific laws in your state apply to your situation.

Though the decisions ahead of you may be difficult, finding the right attorney doesn’t have to be. Findlaw’s directory of dedicated family law attorneys can get you started. Click on your state to see reviews and contact information for local lawyers who can assist you throughout this process. You can even narrow your search results by city.

There's no need to take this on alone. You’ll want to make informed decisions to ensure your loved one has the crucial protection and support they need.