The similarities between conservatorship vs guardianship are in both description and definition. Conservatorships are generally applied to adults, while guardianships typically involve minors. Guardianships and conservatorships center around managing a single person’s affairs and financials.
In guardianships, the person managed is known as the ward, while in conservatorships, they are known as the conservatee. Depending on your state, there could be a difference between an individual’s conservatorship and an estate’s conservatorship.
Similarly, there may be a distinction between guardianship of an individual (someone assigned to take care of a minor with no surviving relatives to adopt them) and guardianship of an estate (someone assigned to take care of a minor’s inherited wealth before they turn 18 years old).
In estate planning, the question of conservatorship vs guardianship is prominent because there are different ways to execute these arrangements. Sometimes, they are court-appointed. Sometimes, they are court-approved.
Conservatorship vs. Guardianship
It’s important to note that there are times when there’s no real distinction between conservatorship vs guardianship. Some lawyers, or even states, will use these terms interchangeably. In practice, the only significant difference is that guardianships usually apply to minors.
At the same time, conservatorships typically apply to an adult’s financial, healthcare, or day-to-day management. Interest in conservatorships has increased with the highly publicized case of Britney Spears’ controversial conservatorship. Spears’ father gained conservatorship over both her estate and her personal affairs – individually – through a court-approved request.
The extent to which her father’s conservatorship controlled her life is extreme by most measures. Still, it helps to illustrate what a conservatorship aims to do – to make crucial decisions for a person deemed by a court to be incapable of making those decisions for themselves. Britney successfully wrested control over her finances and personal decisions away from her father and into her hands in 2021.
This only happened after a judge suspended her father from the conservatorship. In much the same way, conservatees can contest their conservatorships, and a court can remove a conservator’s rights in any other case. Wards can similarly contest guardianships.
In general, the requirements to be a guardian are relatively stringent, and one must officially meet the standards of the court to be allowed as a guardian, even if a decedent parent names a guardian. This means the courts can refuse guardianship if a person’s chosen guardian is deemed unfit to care for their respective ward.
Who Can Be Deemed a Guardian?
In general, a guardian must be able to:
- Provide a stable home – meaning a safe home environment where an older child has sufficient space of theirs. Their privacy and home environment are deemed appropriate for a child to live in.
- Provide sufficient income to care for a child – accounting for medical emergencies, tuition, assorted education costs, and day-to-day living expenses.
- Being mentally and physically fit to care for a child.
Being appointed as a guardian does not guarantee you the right to guardianship for that time. This means if you are approved as a ward’s temporary guardian for the coming years due to the current incapacity of the parents due to personal issues such as substance use disorder or financial insecurity.
A court may terminate your guardianship if the parents can successfully prove their rehabilitation or improve their living situation enough to seek court approval for a reinstatement of their parental rights. Anyone with a “vested interest” in the child’s well-being can seek to terminate a guardianship, including the ward/guardian.
Similarly, other people or the ward can seek to end the guardianship. Decisions must follow the Child’s Best Interests Standard, which is easier said than done. Courts must consider every factor of a child’s well-being and continued welfare before deciding, which can take a long time.
There are exceptions, such as extreme situations where a court must act quickly to remove a child from a harmful environment. If evidence of abuse in guardianship comes to light, the courts will separate the child from the guardian and deem them unfit.
Terminating Guardianship and Co-Guardianship
Not all abuse must be physical or mental. Financial abuse is another circumstance that may warrant terminating guardianship. If a guardian uses money appointed to their ward for their gain or interests, the ward or another interested party may petition to have them removed as guardians.
Because guardianship over an estate – meaning, any money assigned to a minor past a specific point, usually $5,000 depending on the state – requires court-supervised annual bookkeeping and accounting, the courts can spot and identify financial abuse in these cases.
Guardianships are generally limited, meaning they are often used to help provide a ward with a legal representative and guardian if a parent is temporarily incapacitated. Only a few guardianships are long-term. This may be the case if a minor has no living relatives or one else to adopt them.
Numerous guardians may be involved to separate guardianship over a child and guardianship over a child’s inheritance. Guardianships can also be split among multiple people – for example, co-guardianship arrangements involve two or more guardians for one ward.
In some cases, a court may temporarily assign a guardian to represent a child’s legal interests and rights (such as child abuse cases, child custody cases, or divorce cases) – this is called a Guardian ad Litem.
How Is a Conservatorship Appointed?
Courts generally appoint guardians when a child’s parents are incapacitated or unavailable. Courts assign conservatorships to individuals who cannot care for themselves, which can be difficult to define legally. Different circumstances may warrant conservatorships.
For example, a person may be capable of caring for themselves in their day-to-day – holding a job of their own, making sound decisions about their welfare, pursuing an education, and so on. However, they may be drastically irresponsible with their inheritance, frivolously spending their money. Does this warrant a conservatorship? Usually, no.
Financial conservatorships are generally for people who struggle with financial decision-making due to mental incapacity, drug addiction, or another mental health issue. You cannot stop a sound-of-mind person from spending their inheritance and cannot do any differently through a conservator.
Someone who struggles to take care of themselves may not be able to seek employment. They might need a conservator to manage their financial affairs and ensure they can live off their inheritance. Most conservatorships are limited and temporary. If a person is in a coma, a court may appoint a conservator to manage their financial or healthcare affairs until they wake up.
In rarer cases, a court may appoint a conservator to help people who need continued care. Such as managing the costs and administrative fees for assisted living, talking to specialists, and looking after them daily. Conservatorships become more common for people who struggle with dementia in later life. This is especially so if their symptoms bar them from providing for their basic needs, including sanitation and food.
Often, courts appoint conservatorships and guardianships after the fact, but you can manage them through careful estate planning. Utilizing your will, you can name guardians for your children should anything happen to them. This ensures that your children are taken care of by people you trust.
In cases of incapacity, you can also utilize durable powers of attorney to name legal representatives for your healthcare or financial needs. Understanding your possibilities through an estate plan helps you manage all contingencies and ensure that your material and immaterial legacy is safe.