Did you know that in the US, about 1.3 million adults are under some form of guardianship or conservatorship and the majority of them are elderly, with the average age being around 75 years old?
Those under guardianship or conservatorship may have limited autonomy and decision-making authority over their personal and financial matters, as these responsibilities are typically transferred to their appointed guardian or conservator.
The terms used to describe guardianship and conservatorship may vary by jurisdiction. For example, some states use the term “guardianship” for both personal and financial decision-making, while others define conservatorship and guardianship differently.
A guardian is appointed to make personal and healthcare decisions for an individual who is incapacitated due to age, illness, or disability, while a conservator is responsible for managing the financial affairs and assets of the incapacitated person.
In this article, we’ll go over the differences between the two, from the scope of authority, care arrangements and how decisions are made.
Legal Basis and Purpose
When establishing a conservatorship or guardianship, the legal basis and purpose must be clearly defined to protect and care for the individual in need. A conservatorship is typically put in place when someone is unable to manage their financial affairs or make sound decisions about their property due to incapacity.
The primary goal of a conservatorship is to protect the person’s assets and financial well-being.
Guardianship focuses on protecting and managing the personal affairs of someone who’s deemed incapacitated and unable to make decisions regarding their health, living arrangements, or other personal matters. The purpose of a guardianship is to guarantee the person’s safety, health, and overall welfare.
According to elderly abuse lawyers from Belgum, Fry & Van Allen LLP, the legal basis for establishing a conservatorship or guardianship is the individual’s apparent incapacity and the necessity for someone else to step in and make decisions on their behalf.
Scope of Authority
In a conservatorship, the conservator is typically granted authority over financial matters, managing assets, and making monetary decisions on behalf of someone under their care. This authority allows them to pay bills, invest assets, and handle financial transactions.
In guardianship, the guardian is usually given authority over personal matters, such as healthcare decisions, living arrangements, and other non-financial aspects of someone’s life. Like making medical choices, determining where the person will reside, and overseeing their daily care.
A guardian can also be given custody over the child or control of the child’s estate and property. The guardian is also accountable to the court for all of their actions, and typically court-appointed check-ups are necessary to ensure everything is going smoothly.
The scope of authority in both conservatorships and guardianships is legally defined and may vary based on the specific circumstances of each case.
Decision-Making Process
In both conservatorships and guardianships, decision-making revolves around acting in the best interests of the individual under care. When making decisions, guardians and conservators must consider the individual’s preferences and desires to the extent possible. They should consult with the person under their care when feasible and make choices that align with the individual’s values and beliefs. Communication with the ward is important to have their wishes understood and respected.
Guardians and conservators should also seek input from healthcare providers, financial advisors, and other relevant professionals to make well-informed decisions that promote the individual’s welfare and best interests.
Monitoring and accountability
For accountability, guardians and conservators are required to provide regular reports detailing the decisions made on behalf of the individual, financial transactions, and any other relevant information. These reports can then be reviewed by the court or a designated authority to verify that everything is in order.
A system also needs to be put in place for concerned parties to raise any issues or complaints regarding the guardian or conservator. This helps address any potential misconduct or negligence quickly.
Termination and Modification
When circumstances change or the need for guardianship or conservatorship diminishes, the process for termination or modification has to be started quickly. Termination of guardianship or conservatorship typically involves filing a formal request with the court.
The court will then review the current situation, taking into account the wishes of someone under guardianship or conservatorship, as well as input from relevant parties. If the court deems termination appropriate, it will issue a legal order officially ending the arrangement.
Conclusion
When it comes to conservatorship and guardianship, it’s important to seek legal advice and guidance to determine the most appropriate option for the specific circumstances at hand. Remember that both of these arrangements aim to protect a person’s overall well-being when they are incapable of making decisions themselves.