What Is Conservatorship and Does It Differ From Adult Guardianship

What Is Conservatorship and Does It Differ From Adult Guardianship

According to law, every adult is naturally assumed to be capable of making their own decisions about their lives and finances. However, a court may find an adult to be incapable of making responsible decisions. In this case, the court will appoint a substitute decision-maker. Based on the types of decisions that this appointed person would have to make on behalf of the affected individual, they may be referred to as a “guardian” or a “conservator.” Below, we will dive into the basics of stewardship, what it entails, and whether conservatorship and adult guardianship differ in any way.

Conservatorship or Adult Guardianship?

When it comes to conservatorship and adult guardianship, many people wonder how and if these terms differ. In reality, they essentially mean the same thing — different states use one term or the other. To keep things simple, we’ll use the term conservatorship. 

So, what is a conservatorship? When an adult can’t make important life decisions for themselves, a judge would appoint another adult to act as a decision-maker. That person would formally be referred to as a “conservator.” Some incapacitated individuals might be able to make responsible decisions in certain areas of their lives, but not in others. In these cases, the judge may give the conservator decision-making power over only the aspects in which the conservatee (a.k.a. the incapacitated individual) is unable to make critical decisions. This type of stewardship is known as a limited conservatorship.

Alternatively, the court can appoint a conservator to take responsibility both for the conservatee’s personal and financial matters. In other words, one person would serve as the guardian of both the estate and the affected person.

The Process

Conservatorship (or adult guardianship) is a formal court process that aims to establish whether an individual has the capacity to make responsible decisions about their life and estate. The process requires that:

1) a psychologist, physician, or certified clinical social worker determines that an individual is unable to make critical decisions regarding their financial or medical care matters, usually due to a mental or physical disability;

2) there are no available guardianship alternatives, such as a health care power of attorney or a general financial power of attorney.

Suppose the judge finds the person incapable of making sound decisions. The court will then review the evidence and testimony regarding the person’s mental and/or physical capacity and determine whether they need a conservator. If so, they will issue a respective court order to appoint another adult to serve as a conservator on behalf of the court.

Keep in mind that it’s not always easy for a judge to determine whether someone is capable or incapable of making responsible decisions. In many cases, it may be obvious that a conservatorship is necessary. If, for example, a person has advanced Alzheimer’s or an acute form of dementia, the decision to appoint a conservator may be easier to make. However, there are other situations where a person’s physical or mental limitations aren’t as apparent or progressed. In that case, the court has to evaluate the options and weigh opinions to find the best course of action for the affected person’s well-being.

When Would an Adult Need a Guardian?

In traditional terms, guardianship refers to granting legal responsibility to an adult over a child. The law generally considers that when a person turns 18, they become an adult and can make sound decisions about themselves. But, because some adults cannot regain their mental capacity after turning 18 or unfortunately lose it during their adult life, the courts have the power to appoint a guardian to an adult.

So, suppose a person develops a serious medical condition that leads to cognitive decline, such as a stroke, dementia, Alzheimer’s, or another illness. In that case, the court can assign a conservator to make informed decisions on behalf of the affected person. This is done to protect the person from making unwise or even harmful decisions about themselves and their finances due to a medical condition or a disability.

However, that is not the only circumstance in which a person would require the help of a conservator. Individuals can be considered legally disabled if they suffer from alcohol or drug addiction or have a proven mental disorder. In this case, there is a valid reason to request conservatorship.

Who Should Act as a Conservator

In most conservatorship cases, the conservator either lives with or is close to the conservatee. Often this is a parent or an adult child of a senior, but it can also be someone from outside of the family if there are ethical concerns or no available family members. In the case of limited conservatorship, where the conservator is only responsible for managing the estate, it should ideally be someone who is experienced with handling finances and property matters.

Either way, the conservator needs to have sufficient time to handle the conservatee’s affairs. If no family member is available to step in as a conservator, the court will appoint a professional conservator, either a private/paid conservator or a public officer.

  

The Conservator’s Responsibilities

The terms of the conservatorship generally outline the responsibilities of the conservator. If the conservatee is a senior, the conservator will usually have to make decisions about the person’s everyday activities and medical care. In other situations, the conservator will also have to spend the person’s assets to provide basic necessities, such as accommodation, food, and clothing. Additional responsibilities include handling administrative matters like Medicare, insurance, dealing with medical staff, applying for benefits, medical coverage, and more.

The conservator is obligated to record all decisions and expenditures they have made on the conservatee’s behalf, as this information has to be regularly reported to the court. The judge decides how often these reports have to be made and what they should include.

In most cases, a conservator is obligated to go to court before making certain major decisions, including moving the conservatee to a different state, selling their home, or making a substantial purchase.

Ending a Conservatorship

For a conservatorship to end, the court needs to issue an order. This typically happens when:

● The conservatee no longer needs that level of assistance

● The conservatee dies

● In the case of a financial conservatorship. The conservatee’s assets have been exhausted

● The conservator can no longer perform their responsibilities or resigns. In this case, the conservatorship itself doesn’t end, and the court has to appoint a new conservator.

Understanding the pros and cons of conservatorships (or adult guardianships) is essential when trying to find the best solution for the well-being of a loved one or even a close friend. Whether you are in the process of filing for conservatorship or would like to consult with an attorney, you will find a range of legal professionals at the Legal Chiefs network who would readily take on your case. 

 

 

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Family Law FAQ

With major life events and changes, it’s always a good idea to consult a lawyer. Getting through a divorce may also be a very stressful project and you need someone experienced to protect your rights as well as protect your children’s rights (if you have any). Here at Legal Chiefs, we can get you in touch with someone current with the laws in your state concerning divorce, marriage, marital property, child custody, visitation, and family support
The grounds for divorce may be based on no-fault or fault depending on the state, but no-fault divorce is available in some form in all 50 states. Most of the states also have fault-based grounds as an additional option. A no-fault divorce is one in which neither of the partners blames the other for the breakdown of the marriage and common bases for no-fault divorce may be “incompatibility,” “irretrievable breakdown,” or “irreconcilable differences.” Suppose the parties have lived separately for a certain period with the intent that the separation is permanent. In that case, it is another common basis of no-fault, but once again, the specifics vary from state to state. With a fault-based divorce, the list of grounds may include physical cruelty, mental cruelty, adultery, attempted murder, habitual drunkenness, desertion, use of addictive drugs, impotence, insanity, and infection of one’s spouse with venereal disease.
While every divorce starts with a bit of bitterness, statistics show that most of the cases are settled without the need for a judge to decide on a property or other issues. In most cases, spouses are free to divide their property as they see fit in what is called a “marital settlement agreement”, a contract between the married couple that divides property and debts and resolves other divorce issues. However, having a family law attorney is still recommended, and in case the division of property cannot be settled, then the court must make the determination. Once again, the specifics vary from state to state, but many states allow both parties to keep their separate and nonmarital properties as a starting point. Another thing to know about assets and divorce is how dividing marital or community property works. Again, each state has its specifics, and some states are community property states by definition. For example, the state of California divides equality marital property unless a premarital agreement specifies otherwise. However, most states apply the “equitable distribution” concept where the court divides the marital property as it thinks fair. This doesn’t necessarily mean a 50-50 division. The common factors considered by the court include the amount of nonmarital property, each spouse’s earning power, waste and dissipation, fault, services as a homemaker, duration of the marriage, age, health, and others.
When parents can’t agree on custody of their child/children, the court will decide custody based on “the best interests of the child.” There are many factors involved, not one of which is considered the most important.
Joint custody has two parts - joint legal custody and joint physical custody, and a joint custody order can have both or one of the parts. ● Joint legal custody refers to both parents sharing the significant decisions regarding their child/children, which usually include school, health care, and religious training. Other decisions may include summer camps, extracurricular activities, the age for dating or getting a job, discipline methods, etc. ● Joint physical custody refers to the time spent with each parent. The amount of time is flexible and can range from dividing the time between the two parents’ equality to visits every other weekend, and so on. The residing addresses of the parents are often considered, and living close is important, especially in situations where the time spent with both parents will be divided equally.
Since 1965, all 50 states and the District of Columbia have enacted legislation enabling grandparents to petition the courts for visitation rights with grandchildren. However, granting such rights is not automatic, and in most cases, grandparents merely have grounds for asking for a visitation order. Most commonly, a grandparent may petition for visitation after the death of a parent or upon divorce of the parents. Some states allow petitions when the child has previously lived with the grandparent, a child is born out of wedlock, and when a parent is incarcerated.
Unlike most legal matters where specifics depend on the state, talking to a judge separately is prohibited in all 50 states. All communication with the judge takes place on the record during a hearing. This is a way of ensuring fairness to both sides, and just as you would not want the judge to talk to the other party without you being present, the judge is not allowed to talk to you without the other party being present.
Only before a judge has done anything on the case, each party files one “peremptory challenge.” It costs $450, and there is no way to waive this fee. A new judge will be randomly assigned to your case, meaning you cannot pick the new judge. Be careful with the strict timing requirements for filing a peremptory challenge, as the money spent on a challenge is not refunded.

 

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