Conservatorship agreements grant authority over a mentally incapacitated adult’s financial and medical decisions. Guardianship agreements normally grant authority over an individual’s personal care and well-being. Depending on what state you’re in, a conservatorship agreement may also include similar privileges as guardianship, meaning that the conservator has authority over the incapacitated adult’s finances and personal care. This blog explains what conservatorship and guardianship is, which one you’ll need for your loved one, and how to get a conservatorship.
In many states, such as California, the term “guardianship” refers to authority and care over a minor. Alternatively, the term “conservatorship” refers to authority and care over an incapacitated adult. Conservatorships aren’t just for elderly people with dementia. In many situations, a young adult with a mental disability may need additional care or authority as they reach adulthood. Here, you’ll find frequently asked questions about conservatorships vs guardianships, and which type of conservatorship is best for your situation.
Conservatorship VS Guardianship
When a person is no longer able to handle their personal affairs, such as their estate or personal care, the court will appoint a conservator to make decisions. The terms “conservator” and “guardian” may be used interchangeably with each other depending on which state you’re in.
Conservatorship agreements grant authority over a mentally incapacitated adult’s financial and medical decisions. Guardianship agreements normally grant authority over an individual’s personal care and well-being. Some states will distinguish the two terms, be sure to check with a wills and estates attorney in your state to see which one is best suited for your situation. When a guardian is asked to take over both the conservatee’s care and finances, this is a general or plenary conservatorship.
A conservator (guardian) is the person granted authority over certain aspects of a conservatee’s (the incapacitated adult) life. The conservator can make decisions on behalf of the conservatee, such as:
- Personal care and maintenance
- Medical and dental treatments
- Finances and estates
Each state limits what a conservator can and cannot make decisions about. Oftentimes a conservator may have to get approval from a court before making certain decisions. As we’ve seen with more famous conservatorship cases, such as Britney Spears, these arrangements can easily become abusive. This is especially true if there’s a lot of money in a mentally incapacitated person’s estate, or the conservatee does have some level of independence.
To be considered a mentally incapacitated adult, the conservatee would either:
- Have a memory illness, such as Alzheimer’s or dementia.
- Be in a coma or a physical state where they cannot respond.
- Have a permanent or genetic disability, preventing them from being truly independent.
Generally, when deciding whether or not a person is truly “incapacitated”, a court will look at whether or not the person:
- Can tend to their basic needs, including food, health, and shelter.
- Is a danger to themselves or others.
Conservatorships and guardianships are normally reserved for very elderly individuals with dementia or another physical/mental impairment. Oftentimes, the role of the conservator goes to a family member such as a spouse.
Power of Attorney
Alternatively, to avoid any kind of conservatorship with your loved one, you could also appoint a power of attorney. Choosing a power of attorney over a conservatorship has several advantages:
- It’s inexpensive and often free.
- The adult in care chooses the power of attorney.
- A power of attorney can be appointed for as long as you need it.
- You won’t have to go to court.
In order to get a power of attorney, the adult in care must understand and consent to appointing the power of attorney. As a power of attorney, it’s your job to fulfill the adult in care’s wishes, therefore, you only make decisions on their behalf only if they cannot make them.
For example, your mother appoints you as the power of attorney when she’s first diagnosed with cancer. Your mother is elderly and chooses to forgo treatment for cancer. As the power of attorney, you can request treatments to alleviate pain symptoms if she cannot make a decision for herself. However, you must fulfill her wishes by making sure that she isn’t treated for cancer.
In many cases, a medical proxy may be a better solution. This agreement is similar to a power of attorney, but a medical proxy gets to make medical decisions on behalf of the incapacitated adult.
Types of Conservatorships
Depending on your situation, a certain type of conservatorship may be more suitable for you than others. In some states, a court may appoint a conservator to an adult with developmental disabilities if they cannot take care of themselves.
Commonly, conservatorships will have certain time durations:
- Short-term conservatorships last for a 90-day period or less. This type of conservatorship is meant to address a specific need and is normally granted during emergency situations.
- Temporary conservatorships last for a limited time and have other limitations and conditions.
- Permanent conservatorships last for the conservatee’s entire life.
Depending on the state you’re in, a conservatee may request to have the conservatorship revindicated. For example, in the state of California, according to Division 4, section 1810, of the probate code:
If the proposed conservatee has sufficient capacity at the time to form an intelligent preference, the proposed conservatee may nominate a conservator in the petition or in a writing signed either before or after the petition is filed. The court shall appoint the nominee as conservator unless the court finds that the appointment of the nominee is not in the best interests of the proposed conservatee.
There are several different types of conservatorship agreements. Depending on the conservatorship, there are certain limitations within the agreement.
The conservator has authority over some aspects of the conservatee’s life but is limited. These conservatorships are normally reserved for specific needs or disabilities. There are two branches of limited conservatorships:
- Limited conservatorship of a person allows a conservator to make decisions on the conservatee’s personal needs.
- Limited conservatorship of the estate allows a conservator to make decisions on the conservatee’s estate.
For example, you have an adult child with autism. Your child can work, but cannot make financial decisions for themselves. A court grants you limited conservatorship over their finances so you can monitor their spending. When you die, you leave your estate to your child, but name your lawyer as the conservator over the estate to control how much your child can access the estate.
The conservator has authority over the conservatee’s finances. The conservatee may have full autonomy over their personal care, but cannot access their money without permission from the conservator.
For example, your father leaves behind a large fortune for you and your brother when he passes. However, because your brother has had issues with gambling, he names you the financial conservator of your brother’s inheritance so you can limit how much your brother can access at a time.
The conservator has authority over the conservatee’s health and care. The conservator chooses where the conservatee lives, such as their apartment or assisted living. In addition to care, the conservator also makes all healthcare decisions on behalf of the conservatee.
For example, your mother falls ill with dementia and you’re granted physical conservatorship over her. You decide it’s time for your mom to move to assisted living. You also decide to pass on having her vaccinated for COVID-19 due to personal beliefs. However, if your mother only appoints you as the power of attorney and leaves specific instructions to be vaccinated, you cannot intervene unless you get a physical conservatorship.
The conservator has authority over all aspects of the conservator’s life: finances, health, personal care, and other significant decisions. It’s uncommon for a court to grant only a physical conservatorship without also granting a financial one. General conservatorships allow you to have full authority over all important decisions in the conservatee’s life.
How To Get a Conservatorship or Guardianship
Getting a conservatorship or guardianship is a very similar process. You and your attorney will petition the court to appoint you as a conservator or guardian. To do this, you must provide proof that you are financially responsible enough to care for your conservatee. You may need a combined value of money and property of over $10,000.
From there, the conservatee is served a copy of the petition, and other documents listing their rights from this point moving forward. The conservatee and anyone else is fully within their right to object to the conservatorship or the appointed conservator.
You must file a petition for conservatorship with the Probate Division of Superior Court. The Probate Division reviews the request; if accepted, a hearing is scheduled. The conservatee is appointed their own attorney to speak on their behalf. The court may also appoint a social worker (visitor) and physical examiner to assess the conservatee.
From there, a judge decides during a court hearing whether or not the conservatee needs a conservatorship. The conservatee must be present at the hearing unless the judge says otherwise. As mentioned, the conservatee is within their right to object to the petition. If you’re an unsuitable conservator, the judge may appoint an attorney to act as the conservator or guardian.
If no one objects, a judge will sign a judgment that appoints the conservator.
As a conservator, you’re subject to certain conditions, such as visiting your conservatee on a scheduled basis or providing a Guardianship Plan to Probate Court.
When an adult (conservatee) can no longer themselves or their finances, a judge will appoint a responsible conservator for a probate conservatorship if there’s no power of attorney. These conservatorships are normally reserved for elderly persons with dementia or Alzheimers.
The court gives preference to conservators in the following order:
- Adult child
- Public Guardian
Anyone can petition to become a conservator over someone. To do that, you must petition the court. However, conservatorship over a person does not mean you have conservatorship over their estate. You can file for two kinds of probate conservatorships:
- Authority over a person’s health and wellness.
- Authority over a person’s estate and financial matters.
Probate is expensive, time-consuming, and can be dangerous if the conservatee has a large estate. It’s recommended that people avoid probate by appointing a power of attorney while the conservatee can still make decisions for themselves.
Also Read: What’s Probate and How To Avoid It
LPS Conservatorship (Mental Health Guardianship)
A Lanterman Petris Short (LPS) guardianship is designed for mental health facilities or agencies. This arrangement allows a relative, an interested party, or a court to have authority over a person with grave mental health disabilities. It’s granted for one year, but can be renewed if the mentally ill adult is unstable.
Most states have court-ordered mental health evaluation laws. These laws essentially say that if a person is a danger to themselves or others, they can be admitted for evaluation. For example, in the state of California, under Divison 5, section 5200:
Any person alleged, as a result of mental disorder, to be a danger to others, or to himself, or to be gravely disabled, may be given an evaluation of his condition under a superior court order pursuant to this article. The provisions of this article shall be carried out with the utmost consideration for the privacy and dignity of the person for whom a court-ordered evaluation is requested.
No matter how old the person is, you can get a court-ordered LPS conservatorship for their protection. Other states will list these types of mental health guardianships under different names. Search for “mental health evaluation code of conduct” in your state to find more information.
The filing fee alone for conservatorship over a person ranges from around $300 to almost $1,200. In addition to the filing fees, you’ll also need to pay for the following:
- Legally serving the conservatee
- Certified copies
- Medical and psychological evaluations
- Bonds and other filing fees
- Wills and estate attorneys
- Court fees
- Out-of-pocket expenses
In emergency situations, you should expect your attorney fees to be much higher. The cost of getting a conservatorship can also increase if the conservatorship is contested.
Also Read: Deductible Funeral Expenses | How Death Affects Your Taxes
Ending a Conservatorship or Guardianship
A conservatee can request to contest or end a conservatorship at any point in time. Aside from the conservatee dying, a conservatorship can also end because:
- The conservatee no longer needs assistance.
- All the finances or assets are gone or used.
- The conservator can no longer handle the responsibilities.
- Someone else contests the conservator’s ability to take responsibility.
If you need to help with a conservatorship or guardianship for your loved one, you can call MyCaseHelper to connect with a lawyer in your state. We work with quality, top-rated wills and estates lawyers who can also help you with your conservatee’s finances.