NEWSLETTER NOVEMBER 2019
GUARDIAN VS CONSERVATOR
From time to time I receive a phone call from someone who immediately blurts out that they need a guardianship for their parent. But wait! Maybe they need a conservatorship? Maybe both? Maybe they don’t know what they need? Finally, I am hit with the question “What’s the difference between the two?”
To eliminate any confusion, here is an explanation of the two and how they differ from one another.
Guardianship
Terminology varies from state to state, but in general, guardianship (sometimes called “guardianships of the person”) applies to probate court appointment of a fiduciary (“guardian”) to make decisions in regard to the protected person’s personal care. The protected person may be called a “ward” under some state laws, but that term is being phased out as unfavorable. A guardian generally does not have control of the protected person’s finances, although state law or the specific terms of the guardianship may authorize the guardian to hold small amounts of the protected person’s funds if no conservator has been appointed and the protected person does not have a durable power of attorney.
Conservatorship
Conservatorship refers to probate court appointment of a fiduciary (“conservator”) to administer the finances and assets of the protected person. In some states, conservatorship may be called “guardianship of the estate.” Conservatorship is much like trusteeship, although the powers of and restrictions on the conservator are defined by statute and regulation, rather than a voluntary trust agreement or trust declaration, and are typically much less flexible than the powers authorized for trustees. Conservatorships are also analogous to durable powers of attorney. However, one of the key differences between conservatorships, trusts and durable powers of attorney is that conservatorships are court-supervised and directly accountable to the court. It is common for conservators to be required by state law and regulations to account annually to the probate court. Such accounting needs to be accurate to the penny.
People who serve in the capacity of a guardian and/or conservator are to be commended, for it requires a commitment on their part which on occasion can be time consuming.
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