Guardianship vs. Conservatorship: What are the Differences?

When a loved one becomes unable to make decisions for themselves or properly care for themselves, it is often in their best interest for another adult to step in and become their guardian or conservator. Deciding whether it is necessary to become a guardian or conservator of your loved one is never an easy decision, but it can be an important step in making sure your loved one can live a safe and happy life as they age.

While the technical definition of “guardianship” and “conservatorship” can vary depending on the specific laws where you live, we’ve put together this guide to help you learn the differences between guardianship and conservatorship as they are most commonly defined.

If you are considering seeking either guardianship or conservatorship of your loved one, we highly recommend working with an elder law attorney. 

Why would I seek guardianship or conservatorship of my loved one?

Guardianships and conservatorship are sought when an adult is no longer able to make responsible decisions for themselves or cannot properly care for themselves. The most common reasons include:

• Having Alzheimer’s, dementia, or other significant cognitive condition

• An illness or disability that prevents them from caring for themselves

• Your loved one can no longer make beneficial financial decisions 

What are the main differences between guardianship and conservatorship?

A guardian has a wide range of decision-making power over personal, medical, legal, and financial decisions for their loved one.

A conservator has decision-making power specifically over financial matters - things like paying bills, managing investments and property, and matters of a person’s estate.

What are the similarities between guardianship and conservatorship?

Becoming a guardian or conservator both require:

• legal appointment by a court

• submission of an application or petition to the court

• a court hearing before a judge

• regular status reports on loved one’s status and finances

A guardian or conservator can be any competent adult, but the role is usually taken on by a spouse, sibling, or adult child. You can be appointed both a guardian and conservator or have two different people fill each role if necessary.

What to know about being someone’s legal conservator

In a conservatorship, your loved one still has the power to make their own personal decisions about things like where they live or what kind of medical treatments they want, but they can no longer access their money or other investments. Financial decisions will also require the signature of the legal conservator.

For example, you may want to become your loved one’s conservator if they have dementia and are not able to keep up with bills, causing disruptions like utility shut-offs or collecting large amounts of late fees or interest for unpaid credit card bills. 

Surety bonds

Conservators in many states are usually required to obtain a surety bond through a bonding company. A surety bond is basically a promise that you will manage your loved one’s financials responsibly. If you misuse any of your loved one’s money or other assets, your surety bond would be used to cover damages and you would be liable to pay the bonding company back.

Compensation

You may also be entitled to payment for your role as a conservator. It’s important to track the time you spend managing your loved one’s affair as their conservator and document what you did during that time. You may then present your hours to the court, which will then determine the amount of compensation. Compensation usually is taken from your loved one’s assets, which is why many conservators choose not to accept payment.

What to know about being someone’s legal guardian

As a guardian, you have primary decision-making power for most, if not all, aspects of your loved one’s life and are in charge of making sure they are well cared for, commonly called the “duty of care.” Common duties of a guardian include making decisions about:

• medical affairs

• living arrangements

• support care

• property management

• bill payment

• overall safety

When you become someone’s legal guardian, it is important to know that they will likely no longer have the right to vote, get married, sign legal documents, or hold a driver’s license.

If there are some decisions that your loved one can still make on their own, consider limited guardianship. In a limited guardianship, you can designate the specific decisions you will have the power to make as guardian and the specific decisions your loved one can continue making for themselves.

How to get guardianship or conservatorship?

Becoming a loved one’s guardian or conservator involves filing a petition with the courts and attending a hearing (or hearings) so that a judge can review the case and determine if your guardianship or conservatorship should be granted.

The process can be long and complex, so we highly recommend that the first step of securing guardianship or conservatorship be talking with an elder law attorney. An attorney will make sure all documents and court procedures are done correctly and offer great peace of mind as you navigate the process.

Making the right decision for your loved one.

Taking on the role of guardian or conservator for your loved one can be challenging, but it also can offer much-needed structure. As a guardian or conservator, you can feel confident that your loved one is being well cared for and experiencing an improved quality of life as they age.