What is a conservatorship vs. guardianship?

Guardianship and conservatorship are legal terms that are often used interchangeably but have different meanings. Guardianship usually refers to the authority to make personal, medical, legal, and sometimes financial decisions for someone who cannot make these decisions for themselves. This often includes living arrangements, medical care and general welfare decisions. Conservatorship, on the other hand, is specifically related to managing someone’s financial affairs. This can include paying bills, managing investments, and handling estate matters. Both roles require legal appointment by a court and involve responsibilities such as submitting regular status reports on the individual’s well-being and finances.

Does a conservator get paid?

In most cases, a family member who acts as a guardian for another family member does not get paid. However, they can be reimbursed for any expenses they incur while performing their duties. On the other hand, professional guardians appointed when a family member is unavailable or unsuitable for the role receive payment, with the amount pre-determined by the court. If the role of a guardian is particularly time-consuming and interferes with their work or personal life, the guardian can request compensation from the court. If approved, the compensation is taken from the person’s assets under guardianship.

When does a conservatorship end?

Conservatorship can end if the person regains the ability to make their own decisions. The guardians’ responsibilities may also change over time due to various reasons, such as the guardians passing away, relocating, or becoming unable to fulfill their duties. In such situations, a new guardian may be appointed to take over the responsibilities.

Adult Guardianship

Q: What happens if the conservator mishandles my family member’s affairs?

If a guardian mishandles a family member’s affairs, they are generally not held financially accountable for poor decision-making unless it’s proven that they committed fraud, theft, or recklessly endangered the person’s assets. If you believe the guardian is consistently making harmful decisions, whether financially or in personal care, you have the option to file legal documents with the court. These papers bring these issues to the court’s attention, allowing a judge to review the case and decide if the guardian should be replaced.

Date Updated: August 14, 2024

Written by:

Rachel Lustbader

Rachel Lustbader is a writer and editor with a background in healthcare and technology. Her work has been published on websites including HealthCare.com, BiteSizeBio.com, BetterHelp.com, Caring.com, and PayingforSeniorCare.com. She studied health science and public health at Boston University.

Both of Rachel’s grandmothers had very positive experiences in senior living communities, and Rachel saw firsthand the impact that kind, committed caregivers and community managers can have on seniors’ and their family members’ lives. With her work at Caring, Rachel hopes to help other families find communities, caregivers, and at-home products that benefit elderly loved ones and make life less stressful for family caregivers

Reviewed by:

Carina Jenkins

Carina has over a decade of experience as a lawyer and legal advisor. She has assisted clients with family and elder law matters, including estate planning, wills, medical care planning and division of retirement assets in divorce. Her expertise extends to litigation, nursing home abuse and Medicare laws. Carina holds a law degree from the University of Colorado and has completed additional courses in estate planning, family and healthcare law.

Some older adults eventually reach a stage in life where they are unable to make decisions on their own due to serious health issues such as Alzheimer’s, dementia or strokes. While advanced healthcare directives or durable power of attorney for finances can cover certain decisions, there may still be significant areas left unaddressed. That’s where adult guardianship comes in.

Though complex and typically requiring legal assistance and judicial approval, this process is essential for ensuring that important and responsible decisions are made for your loved one when they are no longer capable.

What is Guardianship for Adults?

Sometimes, the guardian may also manage the individual’s financial affairs. However, a guardian’s specific roles and responsibilities may vary depending on the state’s laws and the particular needs of the person under guardianship. As such, anyone considering this process must familiarize themselves with their jurisdiction’s legal definitions and requirements to navigate the guardianship system effectively.

Continue Reading: Learn more about adult guardianship in our Answers Center.

The Pros and Cons of Adult Guardianship

Pros:

Guardianship ensures that an individual with full cognitive abilities makes the important decisions, which can be reassuring for family members.
It protects against elder financial abuse by entrusting financial decisions to a reliable guardian.
Provides legal authority to deal with third parties, like healthcare providers or banks.
The process includes a court's involvement, with a judge reviewing and approving major decisions to protect the senior's interests.

Cons:

Establishing guardianship can be costly, requiring legal help, paperwork, and court proceedings.
It demands time and effort, including ongoing legal responsibilities and paperwork.
Guardianship decisions can sometimes cause emotional conflicts in families, especially if there's disagreement over who should be the guardian.
Older adults might feel upset or offended by the move towards guardianship, seeing it as a loss of independence or a sign of mistrust from their family.

How To Get Guardianship of an Adult

Generally, to begin the process of obtaining adult guardianship, you need to fill out a petition form for the court. This form should explain why you need guardianship and provide details about the person you want to look after. It would be best to inform the relevant parties, including the person you want to become a guardian for and often their family. This step is crucial as it allows them to have a say in the process.

Continue Reading: Learn more about completing adult guardianship forms in our Answers Center.

Next will be the court hearing, during which a judge will hear the case and make a decision. They will evaluate whether the person in question cannot make decisions for themselves and whether having a guardian is in their best interest. If you want to navigate this complex process effectively, it’s advisable to seek legal assistance.

Continue Reading: Learn more about How To Obtain Guardianship of an adult in our Answers Center.

How Does a Judge Decide That Someone Can’t Make Decisions for Themself?

Assessing the need for a guardian involves evaluating the person’s decision-making ability. In cases where a person’s ability to make decisions is impaired but not entirely lost, often due to physical or mental conditions, a judge will review various factors, including medical opinions and family feedback. The court may interview the individual to assess their understanding and decision-making capability.

Who Should Act As a Guardian and What Are The Duties?

When appointing an adult guardian, it is usually preferable for someone who lives with or near the senior to take on this role. Typically, an adult child or sibling becomes the guardian, but in cases where there are concerns about family ethics, a court-appointed representative may be assigned instead. The chosen guardian should be capable of dedicating time to managing the senior’s affairs.

In situations where no suitable family member is available or knowledgeable enough, particularly in financial matters, the court may appoint a professional guardian. This could be a public officer or a privately hired individual. Discussing with your family who should assume guardianship is essential to avoid conflict, as differing opinions can lead to disagreements. Resolving these matters beforehand can reduce stress and simplify the legal process. If conflict is more likely, seeking guidance from an experienced lawyer is advisable.

What Responsibilities Does a Guardian Have?

The role of a guardian for an adult, especially a senior, involves a variety of responsibilities. Some of the things they do for the person under guardianship include:

Make care and financial decisions
Decide on living arrangements
Coordinate health care
Manage one’s bills, insurance and more

Guardians must maintain accurate records of their decisions and expenses for the person they are caring for. These records are periodically reported to the court.The guardian may also be required to appear in court to provide updates on or seek approval for major decisions (e.g., selling their home or moving into a nursing facility). Overall, guardians must comply with all legal requirements and stay diligent in their reporting duties to ensure transparency and protection for the seniors under their care.