Conservatorship vs. Guardianship: Key Differences and Legal Guidance

How do state laws affect conservatorship and guardianship? At a glance

Each state has developed its own approach to protecting vulnerable individuals and navigating these legal arrangements effectively.

• California maintains distinct conservatorship and guardianship systems with detailed statutory requirements. The state offers several types of conservatorships and requires extensive documentation, including physician reports and investigative reports from court investigators.
• Tennessee uses an age-based distinction where guardianship applies only to individuals 17 and younger, while conservatorship is reserved for adults 18 and older. The state also mandates that courts consider the "least restrictive alternatives" before granting conservatorship. 
• Virginia uses "guardianship" for personal decisions and "conservatorship" for financial matters, but allows these roles to be combined under a single appointment. Virginia also emphasizes alternatives, encouraging the use of advance directives and powers of attorney when possible.
• Idaho provides standardized forms and has created specific procedures for limited conservatorships with estates under $50,000. The state also offers guidance on reporting requirements and fiduciary duties for current guardians and conservators.

Who can be appointed as a guardian or conservator?

The appointment process varies by state, but courts generally prioritize family members and close friends while also considering professional guardians when family options are unavailable or inappropriate.

That said, courts carefully consider who should serve as a guardian or conservator, as these roles carry significant legal and ethical responsibilities.

Priority order for appointments

Most states establish a statutory priority order for potential guardians and conservators. Typically, in the following order:

1. Individuals specifically designated by the ward in advance directives or powers of attorney
2. Spouses
3. Adult children
4. Parents
5. Siblings
6. Other close relatives
7. Professional guardians, public guardians, or qualified community members

However, the court will deviate from this priority order if that serves the ward's best interests. For example, if the potential guardian has a difficult relationship with the ward, isn't able to fulfill the required duties, lives far away, or if conflicts of interest arise.

Qualification requirements

Potential guardians and conservators must meet specific qualification requirements that vary by state. Generally, appointees must fit the following description:

• Is an adult (18 or older)
• Is mentally competent
• Isn't a convicted felon
• Hasn't filed bankruptcy
• Hasn't lost a professional license

Some states require candidates to receive a background check, credit report (for conservators), or complete training programs before appointment. Similarly, states might require professional guardians to meet certain licensing, bonding, and continuing education standards.

What are a guardian's or conservator's responsibilities?

The scope of authority granted to guardians and conservators varies based on the specific court order and the ward's needs. Courts increasingly favor limited arrangements that preserve as much autonomy as possible while providing necessary protection.

However, there are some general responsibilities that are worth knowing.

Guardian duties and responsibilities

Guardians are responsible for making personal care decisions that promote their ward's health, safety, and well-being, such as the following:

• Making healthcare decisions, including selecting doctors and approving medical treatments
• Determining appropriate living arrangements and housing options
• Ensuring access to necessary social services and support programs
• Making decisions about education, vocational training, or day programs
• Providing or arranging for personal care services
• Maintaining regular contact with the ward and monitoring their condition
• Making day-to-day decisions
• Filing required court reports documenting the ward's status and care

Guardians must always act in their ward's best interests and, when possible, consider the ward's known preferences and values. 

Conservator duties and responsibilities

Conservators manage their ward's financial affairs and property with the same care they would use for their own assets. Key responsibilities include the following:

• Managing bank accounts, investments, and other financial assets
• Paying bills, taxes, and other financial obligations
• Making decisions about buying, selling, or managing real estate
• Applying for government benefits and managing benefit payments
• Preparing detailed financial records for court review
• Maintaining accurate records of all financial transactions
• Protecting assets from waste, loss, or exploitation
• Making financial decisions that support the ward's care needs

Conservators have a fiduciary duty (legal and ethical obligation) to act in the ward's best interest and keep the ward's assets separate from their own.

How to establish a conservatorship or guardianship

Establishing a conservatorship or guardianship involves a formal court process designed to protect the rights of all parties involved. The process often takes several months and costs between $5,000 and $50,000, depending on legal and local court fees.

Understanding each step of this process can help families prepare for what lies ahead and ensure they meet all legal requirements.

Step 1: File the initial petition

The first step is to file a petition in the probate or family court where the proposed ward lives. The petition typically includes detailed information about the proposed ward's condition, the specific type of necessary protection, and why less restrictive alternatives are insufficient.

The following documents are commonly required:

• Petition forms specific to your state
• Medical evaluations from physicians, psychologists, or other qualified professionals
• Financial information about the proposed ward's assets and income
• Information about family members and other relevant parties
• Filing fees typically cost several hundred dollars, depending on the jurisdiction and needs

Step 2: Court appointment of representatives

Once the court reviews the petition, it typically appoints an elder law attorney or guardian ad litem to represent the proposed ward's interests. This representative investigates the situation independently, interviews the proposed ward and guardian/conservator candidate, and makes recommendations to the court about whether guardianship or conservatorship is appropriate.

Some states also require court investigators or visitors to evaluate the proposed ward's living situation and interview relevant parties. The goal is to objectively assess whether the ward needs protection and whether the proposed guardian or conservator is right for the job.

Step 3: Notice to interested parties

Many courts require potential guardians or conservators to notify all interested parties that they've filed a petition and are going through guardianship or conservatorship proceedings. This typically includes family members, the proposed ward, and anyone else who might be affected by the court's decision. The notice period varies by state.

The goal is to ensure that anyone with concerns about the proposed arrangement has an opportunity to participate in the court proceedings or object to the petition.

Step 4: Court hearing and evaluation

The court hearing gives each party an opportunity to present evidence about whether guardianship or conservatorship is necessary and who they believe should serve in those roles. The proposed ward also has the right to attend the hearing and utilize attorney representation, if they desire.

During the hearing, the judge reviews medical evidence, hears testimony from witnesses, and may interview the proposed ward directly. The court must find clear and convincing evidence that the individual lacks capacity and that guardianship or conservatorship is necessary to protect their interests.

Step 5: Court order and ongoing obligations

If the court grants the petition, it issues an order specifying the guardian's or conservator's authority and any limitations on their powers. This order serves as the legal document authorizing the guardian or conservator to act on the ward's behalf.

Ongoing obligations typically include the following:

• Filing annual reports on the ward's condition and care
• Submitting detailed financial accounts (for conservators)
• Obtaining court approval for major decisions
• Maintaining bonds or insurance as required
• Participating in periodic court reviews

Limited arrangements and alternatives

Courts increasingly recognize alternative legal arrangements or limited guardianships and conservatorships that grant decision-making authority only in specific areas where the ward lacks capacity.

• A limited conservator might only manage investment decisions while the ward retains control over daily spending.
• A limited guardian might only make healthcare decisions while the ward continues to choose their living arrangements.

Alternative arrangements, if available, can often provide necessary protection while preserving more individual autonomy than a traditional guardianship or conservatorship. These include:

• Durable powers of attorney for financial decisions
• Representative payee arrangements for Social Security benefits
• Supported decision-making agreements
• Advance directives and living wills
• Trust arrangements with professional trustees

How LegalZoom can help with conservatorship and guardianship

It can easily feel overwhelming to navigate the complex legal requirements of conservatorship and guardianship, especially when you're already dealing with the emotional stress of caring for a vulnerable family member. LegalZoom’s network of independent attorneys can provide legal consultations about conservatorships and guardianships. Also, to plan for incapacity and avoid the need for conservatorships and guardianships altogether, LegalZoom offers comprehensive estate plan services.

Our platform combines user-friendly technology with access to experienced attorneys who understand the intricacies of guardianship and conservatorship law. Whether you're planning ahead or facing an immediate need for legal protection, LegalZoom can provide the guidance and documentation you need to move forward with confidence.

Conservatorship vs. guardianship FAQs

Can one person serve as both guardian and conservator?

Yes, in most states, one person can be appointed to serve as both guardian and conservator for the same ward. This arrangement is often practical when the ward needs comprehensive protection in both personal and financial matters, and when a trusted family member or friend is available to handle both responsibilities.

However, some situations may benefit from separate appointments. For example, a family member might be well-suited to make personal care decisions but lack the financial expertise needed to manage complex investments. In such cases, the court might appoint the family member as guardian while selecting a professional conservator to handle financial matters.

How much does it cost to establish conservatorship or guardianship?

The total cost of establishing conservatorship or guardianship can vary greatly. It depends on the state, the complexity of the case, whether it is contested, and whether attorneys are involved.

Some of the costs to set up the guardianship include the following:

• Court filing fees: $200 to $1000, depending on the jurisdiction
• Medical evaluations: $500 to $2,000 for required assessments
• Court investigator fees: $300 to $800 in states that require investigations

Some states offer fee waivers for low-income households, while the ward's estate typically pays these costs when sufficient assets are available.

If there are attorneys involved and the case is litigated, the total cost can balloon drastically and can cost hundreds of thousands of dollars.

What are alternatives to guardianship and conservatorship?

Several less restrictive alternatives can provide necessary protection while preserving more individual autonomy, but if you don’t plan ahead, then the following may no longer be an option if the ward has lost capacity:

• Durable power of attorney. Allows a trusted person to make financial or healthcare decisions without court involvement. This document remains effective even if the person becomes incapacitated.
• Advance directives. Include living wills and healthcare proxies that specify medical treatment preferences and designate someone to make healthcare decisions.
• Representative payee. A Social Security Administration program that allows someone to manage benefit payments for individuals who cannot handle their own finances.
• Supported decision-making. A newer approach that provides assistance with decision-making while allowing the individual to retain legal capacity.
• Trust arrangements. Professional trustees can manage assets while the individual retains control over personal decisions.

How long does the guardianship or conservatorship process take to set up?

The timeline for establishing guardianship or conservatorship can take up to several months, depending on several factors.

• Simple cases with clear medical evidence and no family disputes may be set up in about 45-120 days.
• Complex cases involving contested proceedings, multiple medical evaluations, or complicated family dynamics can take six months or longer.
• Emergency situations can be addressed more quickly, with some states allowing temporary appointments within 5–10 days when immediate protection is needed. However, these emergency arrangements usually require full proceedings within 60 days to become permanent.

Factors affecting the timeline include court scheduling, availability of medical evaluators, complexity of the ward's assets, and whether any parties contest the proceedings.

Can guardianship or conservatorship be reversed or modified?

Yes, guardianship and conservatorship arrangements can be modified or terminated when circumstances change. The following are common reasons for modification.

• Restoration of capacity. The arrangement can terminate if the ward's condition improves and they regain the ability to make decisions.
• Change in needs. The scope of authority can be expanded or reduced based on changing circumstances
• Guardian/conservator issues. Courts can remove appointees who fail to fulfill their duties or act against the ward's interests
• Less restrictive alternatives. Arrangements can be modified to use supported, less restrictive alternatives

The process for modification typically requires filing a petition with the court and providing evidence to support the requested changes. Courts may require medical evaluations to document changes in the ward's capacity.

Most states require periodic court reviews of guardianship and conservatorship arrangements to ensure they remain necessary and appropriate. These reviews provide regular opportunities to modify or terminate arrangements that are no longer needed.

Belle Wong, J.D., contributed to this article.