Conservatorship vs. Guardianship

Conservatorship and guardianship are legal arrangements designed to protect and manage the affairs of individuals who are unable to make decisions for themselves, typically due to incapacity, disability, or being a minor. As an estate planning lawyer in Folsom, I am often asked what the difference between the two are and whether they are the same thing. While the specific terminology and laws governing these arrangements vary, here are some general distinctions between conservatorship and guardianship:

Conservatorship:

1. Adult Focus: In California, a conservatorship primarily deals with one adult caring for the needs of another adult. This includes managing the adult’s financial and legal affairs. This also includes paying bills, managing investments, and making healthcare decisions.
2. Incapacity: Conservatorships are typically established when a court determines that an individual lacks the capacity to manage their financial and personal matters. The conservatorship could be limited to just financial affairs or just personal affairs.
3. Conservator Title: The person appointed to manage the individual’s financial and legal matters is known as a “conservator.” This person is often a family member or friend of the individual, but can also sometimes be a corporate fiduciary.

Guardianship:

1. Minor Focus: A guardianship primarily involves making decisions about a minor’s personal and financial needs. This includes medical treatment, living arrangements, asset retention and other personal matters.
2. Incapacity: Guardianships are established because minors are deemed to lack the capacity to make personal and healthcare decisions.
3. Guardian Title: The person appointed to make personal and healthcare decisions for the minor is known as a “guardian.”
4. Age of the Individual: Guardianships only apply to minor children. They do not extend to the elderly or a person in the majority, since conservatorships apply to these individuals.

Other Important Information:

1. One or the Other:
   o You cannot have both a conservatorship and a guardianship. This is because if you are dealing with minors, you will have a guardianship, which will include both financial and physical wellbeing. As such, conservatorships are inapplicable. Likewise, if you are dealing with an adult, guardianships are inapplicable.
2. Less Restrictive Alternatives:
   o Before establishing a conservatorship, courts typically explore less restrictive alternatives, such as the use of a power of attorney, advance healthcare directive, or other legal documents that allow individuals to designate someone to make decisions on their behalf.
3. Termination:
   o Both conservatorships and guardianships may be terminated if the individual regains capacity or if the court determines that the legal arrangement is no longer necessary.

It’s important to note that the terminology and specific laws regarding conservatorships and guardianships vary. In some jurisdictions, the terms “conservatorship” and “guardianship” may be used interchangeably, and the legal distinctions may differ. In California, the two terms are used separately; conservatorship being for adults and guardianship for minors. Additionally, some jurisdictions may have other specialized legal arrangements for specific purposes, such as conservatorships or guardianships for minors, adults with disabilities, or the elderly.

Conclusion

If you need to establish a conservatorship or guardianship or are dealing with these issues, it’s advisable to consult with a Folsom attorney who specializes in estate planning. The attorney will be able to provide guidance based on the laws in California and help you navigate the legal process. If you have any questions about guardianships and conservatorships, please contact Thapar Law at 916-579-0605 or send us a message.