During the estate planning process, you may encounter information about guardianships and conservatorships. Although the two terms sometimes seem to be used interchangeably, they actually refer to two different situations. Understanding the difference between guardianships and conservatorships can affect how you plan for the care of your minor children, how you plan to meet the needs of an aging parent and how you plan for your own care as you age.
In general, a guardianship is when someone is appointed to make decisions about the care of a person. A minor guardianship is when probate court appoints someone to care for a minor child after the child’s parents die or are declared unfit to care for the child. Although the court always tries to appoint someone in the best interest of the child, a parent typically knows his or her child better than a court can. This knowledge can be used to name a guardian of the parent’s choosing in the parent’s will, and in this way, a parent can protect the child in case both the child’s parents become unable to care for him or her.
A probate court can also appoint a guardian for an adult. However, for this to occur, it must first be proven that the adult has lost the capacity to make or communicate responsible decisions about his or her health or safety. For example, the adult child of an elderly woman with dementia may be appointed guardianship if the elderly woman can no longer make safe choices. In situations like this, the alternate decision-maker may have limited decision-making power if the adult in his or her care is still able to make some decisions independently.
In general, conservatorship is when someone is appointed to make decisions about someone else’s money. If a minor inherits money, inherits property or receives a financial award in a lawsuit, a conservator may be required to manage that money until the child comes of age. When estate planning, a parent of a minor child may set up a conservator for the child’s inheritance to protect the assets from being squandered by the child’s guardian. This may be appropriate when the guardian does not have good money management skills or when the child may be cared for by the parent’s ex-spouse.
A conservatorship may also be necessary when an adult has lost the ability to make or communicate responsible decisions regarding the management of his or her money or property. Guardianships and conservatorships of adults are not appointed by courts when less restrictive options are available. In some cases involving adults, powers of attorney and advance directives for health care can prevent the need for a guardianship or conservatorship.
Guardianship and conservatorship are two commonly misunderstood terms. However, with a understanding of both terms, you will be better equipped to make the right estate planning decisions for yourself and take appropriate actions to protect those you love.