Understanding Conservatorship and Guardianship

Sometimes it may be necessary to pursue a conservatorship or guardianship for a person who is not able to make or communicate decisions. Unlike a power of attorney, an individual appointed as a conservator or guardian can make decisions on behalf of the person being protected and those decisions cannot be overridden by the protected person. In a sense, in order to protect the protected person or the community from harm, the protected person's freedom regarding the specific decisions being overseen by the court or legal document has been taken away.

Conservatorship

A conservator is an individual or corporation appointed by a court to manage the estate, property, and/or other business affairs of an individual whom the court has determined is unable to do so for himself or herself. The individual who is being protected is called the "protected person."

Guardianship

Guardianship provides for the care of someone who is not able to care for himself or herself. The court may appoint a guardian if there is clear and convincing evidence that the person is incapacitated and that he or she requires continuing care or supervision. The individual who is being watched over on behalf of the court through the guardian is called the "ward."

Conservatorship has to do with the management of things that the ward owns or has had control over. Guardianship has to do with the management of the life actions and needs of the ward. In many states, guardianship and conservatorship are all wrapped together under one responsibility. In other states, these two responsibilities are clearly delineated. In addition, some states are quite specific about various types of court-appointed representatives such as executors of wills and licensed fiduciaries who may in some states play the same role as a conservator. Each state has its own rules and procedures and may not even use names such as guardianship or conservatorship. Those states that have adopted the Uniform Probate Code in its entirety use the functions as outlined above. Other states that have adopted portions of the code may also recognize the two functions of conservatorship and guardianship.

Another concept used in certain states is the "representative payee." This is an arrangement that is less all-inclusive than a conservator in overseeing the financial obligations of a protected person. The representative payee may only be given certain rights for using income from the protected person to manage the bank account and to pay bills. Other rights over the property of the protected person may not be extended to a representative payee.

Guardians, conservators or other fiduciary agents acting on behalf of an incapacitated person or someone who is dead, can be nominated by a will or other document, by involved financial institutions or by trusted family members. The court will ultimately appoint whomever it feels is the best qualified person or persons.

Sometimes, families or individual children are too eager to pursue guardianship or conservatorship or other arrangements without consideration of the consequences. For example, family members may disagree as to the incapacitation of a loved one. An individual family member going against the wishes of the others and petitioning the court may create great tension and dispute within the family. Sometimes, a child or other close relative is only interested in his or her personal gain by being a guardian or conservator. The needs of the person being protected or the needs of other family members are disregarded. Finally, a family in dispute, seeking a guardianship or conservatorship from the court, can cause severe infighting among family members as well as permanent rifts in communication and future relationships.

Fiduciaries

A fiduciary is someone who has been given responsibility to manage the financial affairs for someone else by following professional conduct and standards. The general rule for fiduciaries is that someone acting in this capacity will make the same decisions for someone else that the fiduciary would prudently make for himself or herself. Persons who are elected to act as fiduciaries have to follow certain standards. These individuals are responsible under the law or to the court that appointed them to act responsibly. Failure to do so may result in legal action.