It can be confusing trying to decide how to ensure a person living with disabilities receives proper care. Just as there are many different types of disabilities and competency levels, there are also different legal oversight levels to address a person’s medical and financial needs.
Conservatorships and guardianships are ways to ensure that a person’s financial, health and personal affairs are well managed. Understanding the differences between the two is key to deciding which is right for the situation.
A conservatorship is obtained through a formal process that involves an application to the court by the person seeking to be appointed conservator. The person in need of a conservator is known as the conservatee. The conservatee must consent to the appointment of a conservator.
A conservator can be a trusted friend, family member or attorney. The conservator has the authority to manage the conservatee’s financial affairs, including investments, pay bills and make purchases.
This is a beneficial arrangement when the conservatee is legally competent but has limited ability to manage his or her own financial affairs or acknowledges difficulty in doing so effectively. Conservatorships are appropriate when cognitive impairments impact a person’s ability to handle their own financial affairs, such as when they suffer from mental illness or addiction. This can also safeguard against older people with diminished capacities being unduly influenced by others regarding their financial affairs.
A conservatee can ask the court to terminate or modify the conservatorship when he or she feels the ability to manage their affairs has returned.
A guardianship, compared to a conservatorship, is a court-supervised legal relationship between the proposed guardian and a person who, because of incapacity, is no longer able to make legal and medical decisions for himself/herself. As part of the legal process, an individual must be deemed incapacitated by two physicians and need not agree to the arrangement.
One may have to apply for guardianship of an adult when there is no power of attorney or advanced health care directives in place. Situations where guardianships are used include for people suffering Alzheimer’s or dementia, are developmentally disabled or are experiencing mental illness, addiction or even a traumatic brain injury.
Recent changes to the law reflect the importance of structuring guardianships to be as least restrictive as necessary. Courts evaluate guardianship applications on a case-by-case basis, as stripping someone of their rights to make decisions, including on issues like marriage or voting, is not taken lightly.
A formal court action is required to terminate or modify a guardianship.