Guardianships and conservatorships are both court-ordered requests. What usually happens is that a family member will hire an attorney to help them ask the court to appoint a guardian or conservator when their loved one can no longer make their own decisions in a competent manner. The argument being that someone else needs legal authority to act on the loved one’s behalf for their own wellbeing. Whether a guardianship or a conservatorship (or both) is the right choice will largely depend on the needs and overall state of the loved one.
Confusion can arise because the duties of guardian and conservator can overlap, or be broken up, and courts often use the terms interchangeably. However, in a generalized sense a “Ward” is the common legal term for the person who needs the additional care or looking after.
Guardians: When a guardian is only tasked with responsibilities to the ward in a personal sense, and not anything financial, they may also be referred to as the “guardian of the person”. A guardian of the person is usually authorized to make decisions regarding the life and person of the ward. This usually includes health care decisions and place of residence, personal care, maintenance, dental, and other necessary treatments. Each State puts limits on the court-appointed guardian’s authority and prior court approval may be required for certain decisions. Any actions taken by a guardian for the ward must be in the ward’s best interests.
Conservators: When a guardian attends to the financial affairs of the ward, they are known as a “Conservator of the Estate” or a “Conservator”. The conservator is tasked with the duty to manage, protect, preserve, maintain and (if needed) dispose of the ward’s estate. Actions taken by a conservator must also be in the ward’s best interests. A person who becomes a conservator is usually given the authority to make unilateral decisions about the ward’s property and estate as if the conservator was the actual owner of the property.
This is where things can get complicated. One person or entity can serve as both the guardian of the person and the conservator of the estate. However, separate people or entities can fill each of these roles. If a ward has a different person or entity as their guardians of the person and conservator of the estate, the conservator will effectively have the control over monetary expenditures not directly related to the Ward’s health or residency. Conflicts between the two usually need to be resolved by the court. When such conflicts arise, the first consideration of the court is what is in the ward’s best interests.
The decision of whether a Ward needs a guardian, conservator, or both will depend on what is in their best interest? It is not uncommon for a ward who has a guardian to also need a conservator. Financials can be difficult to handle. A ward who needs the additional care in making health and living decisions may also likely need assistance managing their finances as well. Conversely, It is not uncommon for a ward to have a conservator and not have a need for a guardian. A person can often competently handle decisions regarding their own health or living situation, even when they may be unable to handle the more complicated realm of finances. What is important to note is that each situation is different and each person is different. The needs of your loved one should be considered carefully. Consulting an attorney to assist in finding the best course of action is always a wise choice.
If you feel you have a loved one who may need a guardian or conservator, please contact us!