What Is Conservatorship and Does It Differ From Adult Guardianship

Posted on October 14, 2021 By legalchiefs
Conservatorship and adult guardian

What Is Conservatorship and Does It Differ From Adult Guardianship

According to law, every adult is naturally assumed to be capable of making their own decisions about their lives and finances. However, a court may find an adult to be incapable of making responsible decisions. In this case, the court will appoint a substitute decision-maker. Based on the types of decisions that this appointed person would have to make on behalf of the affected individual, they may be referred to as a “guardian” or a “conservator.” Below, we will dive into the basics of stewardship, what it entails, and whether conservatorship and adult guardianship differ in any way.

Conservatorship or Adult Guardianship?

When it comes to conservatorship and adult guardianship, many people wonder how and if these terms differ. In reality, they essentially mean the same thing — different states use one term or the other. To keep things simple, we’ll use the term conservatorship. 

So, what is a conservatorship? When an adult can’t make important life decisions for themselves, a judge would appoint another adult to act as a decision-maker. That person would formally be referred to as a “conservator.” Some incapacitated individuals might be able to make responsible decisions in certain areas of their lives, but not in others. In these cases, the judge may give the conservator decision-making power over only the aspects in which the conservatee (a.k.a. the incapacitated individual) is unable to make critical decisions. This type of stewardship is known as a limited conservatorship.

Alternatively, the court can appoint a conservator to take responsibility both for the conservatee’s personal and financial matters. In other words, one person would serve as the guardian of both the estate and the affected person.

The Process

Conservatorship (or adult guardianship) is a formal court process that aims to establish whether an individual has the capacity to make responsible decisions about their life and estate. The process requires that:

1) a psychologist, physician, or certified clinical social worker determines that an individual is unable to make critical decisions regarding their financial or medical care matters, usually due to a mental or physical disability;

2) there are no available guardianship alternatives, such as a health care power of attorney or a general financial power of attorney.

Suppose the judge finds the person incapable of making sound decisions. The court will then review the evidence and testimony regarding the person’s mental and/or physical capacity and determine whether they need a conservator. If so, they will issue a respective court order to appoint another adult to serve as a conservator on behalf of the court.

Keep in mind that it’s not always easy for a judge to determine whether someone is capable or incapable of making responsible decisions. In many cases, it may be obvious that a conservatorship is necessary. If, for example, a person has advanced Alzheimer’s or an acute form of dementia, the decision to appoint a conservator may be easier to make. However, there are other situations where a person’s physical or mental limitations aren’t as apparent or progressed. In that case, the court has to evaluate the options and weigh opinions to find the best course of action for the affected person’s well-being.

When Would an Adult Need a Guardian?

In traditional terms, guardianship refers to granting legal responsibility to an adult over a child. The law generally considers that when a person turns 18, they become an adult and can make sound decisions about themselves. But, because some adults cannot regain their mental capacity after turning 18 or unfortunately lose it during their adult life, the courts have the power to appoint a guardian to an adult.

So, suppose a person develops a serious medical condition that leads to cognitive decline, such as a stroke, dementia, Alzheimer’s, or another illness. In that case, the court can assign a conservator to make informed decisions on behalf of the affected person. This is done to protect the person from making unwise or even harmful decisions about themselves and their finances due to a medical condition or a disability.

However, that is not the only circumstance in which a person would require the help of a conservator. Individuals can be considered legally disabled if they suffer from alcohol or drug addiction or have a proven mental disorder. In this case, there is a valid reason to request conservatorship.

Who Should Act as a Conservator

In most conservatorship cases, the conservator either lives with or is close to the conservatee. Often this is a parent or an adult child of a senior, but it can also be someone from outside of the family if there are ethical concerns or no available family members. In the case of limited conservatorship, where the conservator is only responsible for managing the estate, it should ideally be someone who is experienced with handling finances and property matters.

Either way, the conservator needs to have sufficient time to handle the conservatee’s affairs. If no family member is available to step in as a conservator, the court will appoint a professional conservator, either a private/paid conservator or a public officer.

  

The Conservator’s Responsibilities

The terms of the conservatorship generally outline the responsibilities of the conservator. If the conservatee is a senior, the conservator will usually have to make decisions about the person’s everyday activities and medical care. In other situations, the conservator will also have to spend the person’s assets to provide basic necessities, such as accommodation, food, and clothing. Additional responsibilities include handling administrative matters like Medicare, insurance, dealing with medical staff, applying for benefits, medical coverage, and more.

The conservator is obligated to record all decisions and expenditures they have made on the conservatee’s behalf, as this information has to be regularly reported to the court. The judge decides how often these reports have to be made and what they should include.

In most cases, a conservator is obligated to go to court before making certain major decisions, including moving the conservatee to a different state, selling their home, or making a substantial purchase.

Ending a Conservatorship

For a conservatorship to end, the court needs to issue an order. This typically happens when:

● The conservatee no longer needs that level of assistance

● The conservatee dies

● In the case of a financial conservatorship. The conservatee’s assets have been exhausted

● The conservator can no longer perform their responsibilities or resigns. In this case, the conservatorship itself doesn’t end, and the court has to appoint a new conservator.

Understanding the pros and cons of conservatorships (or adult guardianships) is essential when trying to find the best solution for the well-being of a loved one or even a close friend. Whether you are in the process of filing for conservatorship or would like to consult with an attorney, you will find a range of legal professionals at the Legal Chiefs network who would readily take on your case. 

 

 

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Family Law FAQ

With major life events and changes, it’s always a good idea to consult a lawyer. Getting through a divorce may also be a very stressful project and you need someone experienced to protect your rights as well as protect your children’s rights (if you have any). Here at Legal Chiefs, we can get you in touch with someone current with the laws in your state concerning divorce, marriage, marital property, child custody, visitation, and family support
The grounds for divorce may be based on no-fault or fault depending on the state, but no-fault divorce is available in some form in all 50 states. Most of the states also have fault-based grounds as an additional option. A no-fault divorce is one in which neither of the partners blames the other for the breakdown of the marriage and common bases for no-fault divorce may be “incompatibility,” “irretrievable breakdown,” or “irreconcilable differences.” Suppose the parties have lived separately for a certain period with the intent that the separation is permanent. In that case, it is another common basis of no-fault, but once again, the specifics vary from state to state. With a fault-based divorce, the list of grounds may include physical cruelty, mental cruelty, adultery, attempted murder, habitual drunkenness, desertion, use of addictive drugs, impotence, insanity, and infection of one’s spouse with venereal disease.
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Unlike most legal matters where specifics depend on the state, talking to a judge separately is prohibited in all 50 states. All communication with the judge takes place on the record during a hearing. This is a way of ensuring fairness to both sides, and just as you would not want the judge to talk to the other party without you being present, the judge is not allowed to talk to you without the other party being present.
Only before a judge has done anything on the case, each party files one “peremptory challenge.” It costs $450, and there is no way to waive this fee. A new judge will be randomly assigned to your case, meaning you cannot pick the new judge. Be careful with the strict timing requirements for filing a peremptory challenge, as the money spent on a challenge is not refunded.