February 27, 2014
Guardianships and Conservatorships
In certain situations, a fiduciary needs to be appointed to manage the affairs of a minor, a guardianship, or the affairs of an incapacitated individual, a conservatorship. Though the circumstances when such are needed differ, there are nonetheless shared attributes between the two. The following are some similarities and differences between these legal procedures.
For reference, a guardianship is needed when a minor child lacks a guardian, i.e. a parent, while a conservatorship is for those lack the capacity to manage their affairs.
1. In the case of a guardianship, it automatically terminates when the minor 18. There is no deviation from this. Conversely, a conservatorship does not have a set end date. It can last for days, weeks, months, years, decades, etc. The typical termination date of a conservatorship is death.
2. When a person wishes to nominate a guardian for their child, they customarily do so through a will. Conversely, a conservatorship is not nominated in a will.
3. A guardian cannot draft a will for a minor. Whereas a conservator may draft a will on behalf of the conservatee, the incapacitated adult, if court approval is previously obtained.
4. A guardianship is automatically required if a child lacks a legal guardian, e.g. a parent. A conservatorship is not automatically required. There must be a judicial determination that the conservatee lacks the capacity to manage their affairs.
5. A guardianship and conservatorship are essentially default provisions in terms of estate planning, except in the case of a guardianship of a minor's person. For example, a parent can draft a trust which can hold a minor's inheritance in trust to avoid the necessity of a guardianship of the estate. As for a conservatorship, a power of attorney and advance health care directive can serve as substitutes for a conservatorship of the estate and person.
1. Both require court appointment and supervision, e.g. an annual accounting rendered to the court for approval.
2. Both have a "person" and "estate" component to it. The former encompasses basic life functions such as where you live, what you eat, who do you socialize with, what do you do with your free time, etc. The latter entails the management of your finances. Therefore, the guardian of a minor's estate and person would have control over both where the minor attends school and management of their finances.
3. Both roles can be held by a relative, friend, neighbor, etc. In other words, there is no licensure requirement for acting as a conservator or guardian. Although there is a limit on the amount of times a non-licensed person can act as a guardian and/or conservator.
4. Both can have the role be performed jointly by different people. For instance, a married couple can act as the guardian of their relative's child.
5. Both aspects of a guardianship and conservatorship, the person and estate component, can be held by the same person.