Duties and Responsibilities of Guardians and Conservators
These Fiduciary Roles Can Involve Multiple Responsibilities
A guardian or conservator—or sometimes both—is appointed by the court when an individual has been determined to be mentally or physically incapacitated, or when a minor is in need of an adult to manage his property. Those in need of such care are referred to as wards of the court.
The duties of guardians and conservators can overlap, and sometimes the same person is appointed to both roles, but they're actually different.
A Guardian Isn't Necessarily a Conservator
A guardian is responsible for a ward's personal care, whereas a conservator oversees his finances.
Some states, such as Massachusetts, prohibit a guardian from having any involvement in the ward's finances, while in other states, a guardian might be required to assume conservatorship duties when the ward has minimal financial holdings. A separate conservator is generally only appointed in the District of Columbia if the ward's finances are such that the guardian would have to handle more than $24,000 a year.
A Guardian Will Arrange Personal Care
A court-appointed guardian is responsible for taking care of the ward's personal and medical needs. He'll decide where the ward should live, such as at home with a caretaker or in an assisted living or full care facility. He keeps in contact with the ward's physicians and other care providers.
A guardian can often make medical decisions on behalf of the ward, although some states limit this power.
A Conservator Will Invest the Ward's Liquid Assets
Assuming the ward has liquid assets, a conservator would be responsible for deciding where the funds will be held and who will be responsible for overseeing their investment. She might do so herself or enlist the help of a professional financial adviser.
A guardian would most likely oversee a simple bank account.
A Conservator Will Handle Real Estate and Tangible Personal Property
In cases where a ward has more substantial holdings, the conservator would be responsible for determining whether assets such as real estate and tangible personal property should be bought, held, or sold. This can include selling the ward's car to raise the money to purchase a properly equipped van, or selling the ward's primary residence to raise the cash necessary to pay for the ward's care.
The conservator will maintain ongoing contact with the ward's financial institutions to ensure that everything is running smoothly and being dealt with appropriately. The order of conservatorship provided by the court gives him the legal power to do so and to make financial decisions on the ward's behalf.
Paying the Ward's Bills and Filing Income Tax Returns
The conservator will typically pay the ward's bills, including medical and personal bills, unless the ward's income and financial obligations are minimal and the guardian is charged with this task.
The same delegation of responsibilities would apply to preparing and filing all income tax returns on behalf of the ward and paying any taxes that are due.
When Court Approval Is Required
Guardians and conservators have numerous duties and responsibilities with regard to taking care of the ward's needs. Depending upon the laws of the state where the ward lives, some of these duties and responsibilities will require court approval, while others generally will not.
Florida law requires that a conservator must get court approval before selling any of the ward's real estate or personal property. Nebraska requires court approval before using the ward's debit card for withdrawing funds from an account. A guardian can't admit the ward to a nursing home or administer certain drugs without a special court order in Massachusetts.
Annual Accountings Are Often Required
A conservator is usually responsible for preparing an accounting of actions she's taken on the ward's behalf and filing it with the court each year. Some states require that a conservatorship must begin with a full accounting of all the ward's assets and debts at the present time, including values.
The annual accounting typically includes how the ward's assets have been bought, sold, or invested, and what has been spent on behalf of the ward during the previous year.
A doctor's report might be required, detailing the ward's current mental and physical conditions and stating whether a guardianship is still required if the ward is mentally or physically incapacitated. The accounting should include a plan detailing the medical treatment and personal care received by the incapacitated ward in the previous year, as well as an outline of the plan for the ward's medical and personal care for the next year.
A court-appointed guardian or conservator must also typically file a final accounting of a minor's assets and distribute the remaining assets outright to her when she reaches age 18 or age 21, depending on state law.