Guardianships and conservatorships are relationships established by a probate court between a minor (a person under 18 years old) or ward (an incapacitated adult) and a competent adult who is charged with the care of the minor or ward or their property. Guardianships and conservatorships typically become necessary when the personally that normally would provide such care is no longer available either due to their own incapacity, death, or abandonment of the minor or ward. For example, a minor usually needs a guardian only if neither of her parents is available to provide the minor care. An adult would need a conservator if he becomes incapacitated and has made no provision for the management of his property by another person. Whatever the cause for the need of a guardianship or conservatorship, the person seeking to establish it (i.e., the petitioner) should be familiar with the legal process to do so.
The difference between a guardianship and conservatorship is important to both the legal process and the petitioner’s goals. The short explanation is that a guardian looks after the person while the conservator looks after the property. A guardian and conservator can be the same person, but the court will require a showing that both are necessary.
A guardian is appointed to care for the personal well-being of the minor or ward. This means the guardian is responsible for ensuring the minor or ward is receiving regular, daily supervision and support with daily living activities. For a minor, those responsibilities include ensuring the minor is clothed, housed, and fed, and attends school and social activities. For a ward, the responsibilities are similar, except the guardian often needs to engage support services such as long-term care providers and participate in (and often make) healthcare decisions for the ward.
A conservator is appointed to manage a minor or ward’s property. Whereas a guardian would be in charge of choosing which camp a minor would attend, a conservator would ensure sufficient funds existed to pay for the camp and then pay those costs. A conservator also must determine when and how to invest the minor or ward’s property, and prepare an annual budget declaring how the property will be used. One important qualification necessary to become a conservator is creditworthiness. A conservator is required to provide a bond to the court (similar to security for a loan) and must have a decent credit history to obtain a bond insurance policy.
The petition for a process regarding a ward is different from a minor. After a petition for a ward is filed (which required either the signature of two petitioners or an affidavit from a doctor declaring incapacity), the court will order an independent evaluation of the ward to determine whether the ward is incapacitated. If the evaluation confirms incapacity, the court hold a hearing to make an official finding of incapacity and to hear evidence as to who should serve as guardian/conservator.
A minor is considered legally disabled by default, so no finding of incapacity is necessary. The petitioner need only complete the petition with the required information, and so long as nobody disputes the petition and a background check on the proposed guardian/conservator is clear, the court will grant it. A hearing is not required.
The court’s main concern in appointing a guardian/conservator is the vague standard of “the best interest of the minor/ward.” This standard looks at the totality of the circumstances and is subjective and therefore subject to the whims of the judge. Therefore, if there is any risk of a dispute over who should serve as guardian/conservator, it is important to be prepared to provide evidence at the hearing as to why one person is more qualified than another. Also, the judge has the ability to place significant restrictions on what a guardian/conservator is permitted to do, though such restrictions are rarely ordered. More often, if the matter is disputed, the judge may place conditions on the guardian/conservator beyond what the law provides.
The guardianship/conservatorship process is an important element in providing continuous, consistent care to a minor/ward. The process is not perfect, but it usually results in a positive outcome. The best way to ensure the process goes as smoothly as possible is to understand how it works at each step. Our firm knows the process and can help you through it. Please contact us to find out how.
