Frequently Asked Questions About Conservatorships and Guardianships
Whats the difference between a Conservatorship and a Guardianship?
- A court will appoint a conservator of the person for a person who is 18 or older if the court determines that he or she is unable to provide properly for his or her personal needs for physical health, food, clothing, or shelter.
- A court will appoint a conservator of the estate for a person who is 18 or older if the court determines that he or she is substantially unable to manage his or her own financial resources or resist fraud or undue influence. The appointment of a conservator of the estate is an adjudication that the conservatee lacks the legal capacity to enter into or make any transaction that binds or obligates the conservatorship estate.
- Ordinarily, the court will appoint as conservator the person or persons the conservatee nominated or has previously nominated in writing. All estate plans should include a nomination of the person or persons whom you wish to be appointed if the need arises.. (Such a nomination is included in the Durable Powers of Attorney we prepare.)
- A court will appoint a guardian for a person less than 18 years of age if there is no parent able and willing to make sure the minor's needs for food, clothing, shelter, education and medical care are met. All guardianships terminate when the child attains the age of 18 years.
- The court will ordinarily appoint as a guardian the person or persons whom the parents have nominated. For that reason, parents of minor children should always execute a nomination of guardian for their children. Such a nomination should prevent any fighting among family members as to who should assume responsibility for the minor if his or her parents become unable to do so.
How does the court get involved in a conservatorship or guardianship?
The court becomes involved when a petition is filed requesting the appointment of a conservator or guardian. The petitioner is most often a relative. For example, many conservatorship petitions are filed by children of a proposed conservatee. Many guardianship petitions are filed by the grandparents of the proposed ward, the minor on whose behalf the petition is filed.
What are the benefits of court involvement? What are the drawbacks?
- The primary benefit of court involvement is the protection of the conservatee or ward. For example, a conservator or guardian of the estate is generally required to post a bond, file an inventory and appraisal of the beginning assets (with the appraisal performed by an independent referee appointed by the court), file regular accounts, obtain authorization or approval of the court for his or her acts, and obtain prior court approval to pay fees. A conservator or guardian of the person is required to file annual or biennial reports. In addition, there is an initial investigation for each conservatorship of guardianship petition filed, conducted by the court investigator's office. Once a conservator or guardian is appointed, the court investigator's office conducts regular assessments.
- The primary drawback of court involvement is the expense. Most petitioners hire an attorney to draw up the paperwork. Often, an attorney is appointed to represent the proposed conservatee or ward. A contested conservatorship can significantly increase the cost. There are court fees, including the filing fee, the fees charged by the referee who appraises the non-cash assets, and the court investigator's fees. Most of the expenses are incurred in the first year of the conservatorship or guardianship. However, since a conservatorship generally continues until the death of the conservatee, there will be on-going expenses in the administration of the conservatorship.
- The other drawback is the lack of privacy. The assets and income of the proposed conservatee, as well as the reasons why court involvement became necessary, is a matter of public record.
When is the appointment of a guardian of the person necessary?
A court will appoint a guardian for a person less than 18 years of age if there is no parent able and willing to make sure the minor's needs for food, clothing, shelter, education and medical care are met. Often, the inabiliity to care for the minor stems from a parent's substance abuse problems or criminal activity.
When is the appointment of a guardian of the estate necessary?
A guardianship of the estate may become necessary when the minor receives a large gift or becomes entitled to inherit a substantial amount of money. In such cases, the guardians of the estate are often the minor's parents. Fortunately, there are often alternative ways to allow the parents to hold and receive the money for the minor without the need to appointed guardians of the estate (see answers to FAQ regarding Alternatives to Conservatorships and Guardianships.)