When an individual is in need of care to the extent that they become a ward of the court, the court will appoint a guardian or conservator to help. A guardian assumes responsibility for the basic care and daily needs of a child or of an individual who has been determined to be mentally or physically incapacitated, while a conservator is appointed when a minor or incapacitated adult is in need of an adult to manage their property and assets.
The duties of guardians and conservators can overlap, and sometimes the same person is appointed to both roles, but their roles are very different.
What's the Difference Between Conservatorship and Guardianship?
|Primary responsibilities||Managing ward's financial affairs||Managing ward's personal care and daily living needs|
|Additional duties||May extend to more substantial holdings and assets||May extend to securing medical care, education, and minor financial duties|
|Checks on authority||Fiduciary duty, power of attorney, yearly accounting||Fiduciary duty, restricted to threshold below $24,000 per year|
A guardian is responsible for an elder or minor ward's personal care, providing them with a place to live, and with ensuring their medical needs are met. Guardians make sure that their ward has a place to live, such as the guardian's home, with a caretaker, or in an assisted living or full-care facility.
Conservators are appointed for those who are in need of having their financial affairs handled. In cases where wards have more substantial holdings, the conservator becomes responsible for determining whether assets such as real estate and tangible personal property should be bought, held, or sold.
The conservator will maintain ongoing contact with the ward's financial institutions to ensure that everything is being managed appropriately. The order of conservatorship provided by the court gives the conservator the legal power to make financial decisions on the ward's behalf.
Guardians are also required to make sure minor wards are receiving the education they require in addition to the formerly listed duties, and for receiving any training that the ward might require. Minor financial responsibilities, such as paying bills and purchasing daily necessities, are also tasks for a guardian.
A guardian can often make medical decisions on behalf of the ward, although some states limit this power depending on the status of the ward.
The conservator uses the ward's finances to pay the bills, including medical and personal bills. They also make sure income taxes are filed and paid as needed.
If a minor ward has liquid assets (able to be converted to cash quickly), a conservator can decide where the funds could be held and who would be responsible for overseeing their investment. The conservator might do this directly or enlist the help of a professional financial adviser.
Celebrities who reached popularity while young tend to have some issues once they are able to access their own finances. It is not uncommon for courts to appoint a conservator to manage the young celebrity's affairs. In rare cases, conservatorships can last much longer than state laws mandate (generally until 18 or 21 years of age).
Checks on Authority
Generally, the guideline of income or benefits of $24,000 per year is used to establish whether a person needs a guardian or a conservator. Conservators are used when wards have more financial holdings.
A conservator is usually responsible for preparing an accounting of actions they've taken on the ward's behalf, 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 time the conservatorship is established.
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.
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 when the minor reaches adulthood.
A doctor's report might be required from time to time, detailing the ward's current mental and physical conditions, and can state whether a guardianship or conservatorship is still required.
Which Is Right for Your Situation?
A guardianship may be appropriate if:
- The ward is a minor with no parents or relatives who can serve as daily caretakers
- The ward is an adult who is not mentally or physically capable of taking care of themselves and their basic needs
- The ward has special educational or medical needs that are not currently being provided
A conservatorship may be appropriate if:
- The ward is an adult who has been deemed legally incompetent to make their own financial decisions, and does not have anyone serving as power of attorney
- The ward is a minor who has inherited or been entrusted with a large sum of money that would benefit from professional management
When Court Approval Is Required
Guardians and conservators have many duties and responsibilities when given a ward to look after. Depending upon the laws of the state where the ward lives, some of these duties and responsibilities will require court approval, while others may 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.
In Massachusetts, a guardian can't admit the ward to a long-term care facility or administer certain drugs without a special court order.
If you have been granted the privilege of caring for someone as a guardian or conservator, make sure to familiarize yourself with your state's laws and requirements.
The Bottom Line
A guardian or conservator is considered to be a fiduciary, someone who is legally bound to put the ward's best interests before their own. Serving as a guardian may demand attention to a wide range of your ward's needs that cover all aspects of life, or hiring the professionals and services needed so that they receive this care—it's essentially like being a parent. Being a conservator may be less hands-on, but you will be expected to make sound and often high-stakes financial decisions.
These can be very trying responsibilities, so if you have been asked to serve as a guardian or conservator, you'll need to be sure you have the time, resources, and patience to put into them.