Both conservatorships and guardianships are legal tools that are used to protect individuals who are unable to manage their own affairs due to age or illness.
The two tools are similar, but also differ in terms of who they protect and how.
Given the financial and emotional vulnerability of the individuals protected under these arrangements, it’s essential to choose the right legal tool to safeguard their interests.
In this article, we’ll explain what each of these tools are, how they differ from one another, and also outline some alternatives that might fit your situation.
What is a Conservatorship?
A conservatorship is a legal arrangement set up by a court to protect a vulnerable adult who is incapable of managing their own affairs. The protected person is called a “conservatee,” while the person responsible is called a “conservator.” Courts generally prefer to appoint a conservator who is related to their conservatee by blood.
Conservatorships are usually set up to protect elderly people who suffer from debilitating illnesses, such as dementia. They’re also sometimes used in cases where an adult is incapacitated due to severe mental illness, trauma, or injury. Regardless of the cause, the court will need to see clear evidence that the conservatee is unable to care for themselves before assigning them a conservator.
In most conservatorships, the conservator takes responsibility for making decisions about the conservatee’s finances. For example, the conservator will file taxes and make investment decisions on the conservatee’s behalf, or ensure that regular medical bills get paid on time.
Sometimes, a conservator is also empowered to make personal decisions on behalf of their conservatee, such as whether or not to go into a nursing home. In all cases, the conservator has a fiduciary duty to make these decisions in the best interests of the conservatee and not act to benefit themselves.
Conservatorships can be:
- Full: Giving the conservator the ability to make almost all financial and personal decisions on the conservatee’s behalf.
- Limited: Granting the conservator authority over the conservatee only in the narrow areas where the conservatee needs help.
Courts generally prefer to grant limited conservatorships, since these maximize the autonomy of the conservatee as far as possible.
What is a Guardianship?
A guardianship is a legal arrangement set up by a court to protect a vulnerable child when the child’s parents are unable or unwilling to do so. The protected child is called a “ward,” and the person responsible for them is referred to as their “guardian.”
Guardians are often related to their wards in some way—perhaps an aunt, a grandparent, or an older sibling. But they can also be a friend or a neighbor, provided those people play a significant emotional role in the ward’s life. If a suitable individual can’t be found, a court might appoint a professional guardian who has undergone special training, or even a non-profit or a corporation.
Wards are most often minors, but they can also be adults with severe mental health issues or disabilities who are incapable of looking after themselves.
Guardians focus primarily on the personal care of their ward. This might include areas like:
- Ensuring they have a safe place to live
- Giving them sufficient food and clothing
- Providing adequate medical care, therapy and insurance
- Finding a suitable educational environment
Some guardianships also have a financial element, but this is generally not the focus of a guardianship.
Like conservatorships, guardianships are sometimes limited in scope. In this instance, the court will strictly define areas in which the ward is incapable of looking after themselves, and preserve the ward’s right to autonomy in all other areas.
In What Ways are Conservatorships and Guardianships Similar?
Although they’re not the same legal structure, there are numerous similarities between conservatorships and guardianships, to the point that laypeople sometimes confuse one for the other.
They protect a vulnerable person
Legally and ethically, the purpose of these structures is to protect vulnerable people who can’t look after themselves, whether due to age, illness, or incapacity.
There is a fiduciary duty
In both cases, the person taking on the role of protector has a fiduciary duty towards the person they’re looking after.
This means they have a legal obligation to act in the best interests of the other person. If a guardian or conservator is found to have acted selfishly, it’s likely that a court will decide to end the arrangement, or replace them with someone more responsible.
Handled by probate courts at the state level
In most states, guardianships and conservatorships are handled by the probate courts.
In almost all cases, these matters are handled at the state level. Federal courts do not get involved in these processes.
Requires a legal petition and court order to set up
To set up a protective arrangement, a petition must be filed at a probate court. This petition lays out the case for why the individual needs legal protection.
It’s particularly important to establish that the individual in question is vulnerable and not able to provide for their own needs. The court will schedule a hearing to evaluate the evidence and see if appointing a conservator or guardian is necessary.
If the court finds that the individual needs protection and deems the petitioner suitable, they will issue an order setting up a protective arrangement.
There is constant legal oversight
By the nature of the relationship, both guardians and conservators have a lot of authority over the lives of those they’re protecting.
To prevent this authority from being misused, courts require guardians and conservators to submit regular reports detailing their actions. Such reports are normally submitted annually or biennially.
Courts also conduct their own reviews periodically to see if the protective arrangement is still necessary.
What are the Differences Between a Conservatorship and a Guardianship?
The differences between conservatorships and guardianships vary from state to state. That being said, the following table summarizes the main differences:
| Conservatorship | Guardianship | |
|---|---|---|
| Protected person | Incapacitated adult | Minor, or disabled adult |
| Scope | Primarily financial | Primarily personal care |
| Duration | Until the conservatee is able to provide for their own needs again, or until the conservatee dies | Until the ward turns 18 |
Protected person
Guardianships are normally used to protect vulnerable minors, whereas conservatorships are typically for adults who have become incapacitated.
Sometimes, guardianships are used to protect disabled adults or those struggling with severe mental health issues.
Conservatorships for minors are rare and typically limited to cases where a minor owns significant assets requiring financial oversight.
Scope
A conservatorship is normally focused on the management of the conservatee’s finances, such as paying bills, filing taxes, investing money and handling property.
By contrast, a guardianship is focused on the personal care of the ward, covering everything from food and shelter to education and social needs.
Conservatorships sometimes have a personal component as well. In such cases, the court will normally specify that this is a full conservatorship.
Guardianships occasionally have a financial component, but this is not the main focus of a guardianship.
For both conservatorships and guardianships, courts like to limit the scope wherever possible, so as to protect the rights and freedom of the person being protected.
Duration
Guardianships generally end when the ward turns 18. At this point, the ward is legally an adult, so the onus of providing for their needs falls on them.
Conservatorships vary in their length. Some are set up for a specific period, such as the length of time of a debilitating illness, injury or personal crisis experienced by the conservatee. In other cases, the conservatorship lasts for the remainder of the conservatee’s life. This might be true for an older person with severe dementia, for example.
In the case of a conservatorship, the conservatee might decide to file in a probate court if they’ve regained capacity and want to end the relationship. Guardianships are more likely to just end automatically when the ward becomes an adult, without the need for a legal process.
Examples and Use Cases
The following examples illustrate how courts decide between appointing a guardian or a conservator, depending on the circumstances.
Example 1: Guardianship
In 2023, NBA star Tristan Thompson filed for the guardianship of his younger brother, Amari.
Their mother had just passed away, and their father had been absent from their lives for years. Amari was 16 when his mother died, so he was still a minor. He has severe epilepsy, so requires care around the clock.
The court judged Tristan, then in his early 30s, to be the most appropriate guardian to help care for his brother on a day-to-day basis. So in early 2024, he was granted sole legal guardianship and given responsibility for his brother’s welfare.
In this instance, a guardianship was more appropriate that a conservatorship, because Amari was a minor and his needs were primarily health-based, rather than financial.
Example 2: Conservatorship
In 2008, a conservatorship was set up to protect pop star, Britney Spears.
In the years prior to the conservatorship, Spears had experienced a series of well-publicized personal crises, including two divorces, a stint in rehab, being filmed attacking a journalist’s car and being put in a psychiatric hospital.
The court created a full conservatorship that managed both Spears’ finances and her personal decisions. While lawyers and a professional conservator had some degree of control, the primary conservator was Jamie Spears, Spears’ father.
It made sense to create a conservatorship, not a guardianship, because Spears was an adult and had significant financial problems.
In 2021, Spears filed to end the conservatorship, and the court granted this request. There was significant public pressure and speculation that the conservatorship had been excessively restrictive.
What Alternatives Are There To These Structures?
Spears’ case illustrates some of the risks of protective arrangements—particularly the challenges associated with a loss of autonomy.
Sometimes, courts consider alternatives that can achieve the same goals, while preserving more individual choice and dignity.
Here are some of those alternatives.
1. Power of Attorney
This is a legal arrangement that allows someone to appoint someone they trust to make financial or medical decisions on their behalf. The protected person is referred to as the “principal,” while the person making decisions on their behalf is called the “agent.”
The important thing here is that the principal must be mentally competent at the time they give power of attorney to the agent. This makes this a good solution for adults who still have their mental faculties intact, but want to plan ahead for the event that they become incapacitated.
2. Advance Directive
This is a document stating a person’s preferences for medical treatment if they become unable to communicate or make decisions themselves. For example, the document might specify whether the person wants life support or resuscitation.
Advance directives sometimes name a healthcare agent to carry out the individual’s wishes, removing the need for a court-appointed person to make critical healthcare choices.
3. Representative Payee
This is a person approved by the Social Security Administration to manage someone else’s government benefits, including Social Security, SSI and veterans’ benefits. It’s often used for people who have severe disabilities or mental health conditions.
This is a good solution for individuals who can manage most aspects of their life independently, but need help handling the benefits-related part of their finances.
4. Supported Decision-Making Agreement (SDMA)
This is a legal agreement where a person with a disability chooses trusted supporters to help them make decisions.
Unlike a guardianship, an SDMA doesn’t remove decision-making rights. The person remains in charge of their own life, but can seek help in interpreting information and weighing decisions.
Wrapping Up
The best legal arrangement to protect the needs of a vulnerable person depends on the individual’s situation and the state they live in. That being said, as a general rule:
- Conservatorships are good solutions when an adult is incapacitated and needs help with making financial decisions.
- Guardianships are beneficial in cases where a minor is unable to provide for their own personal needs, and parents are unable or unwilling to step in.
Since both these arrangements are quite restrictive, it’s also worth considering the alternative solutions that we listed.
We appreciate that choosing the right legal protection can be complicated. The good news is that you don’t have to go through this process alone. Our qualified lawyers are here to support you.
Call (720) 613-8268 today to request a free consultation.
