When it comes to the intricacies of substitute decision-making, there is often confusion surrounding the terms "conservatorship" and "guardianship." Much of this confusion lies in the fact that there isn't any one standard legal definition for either term, and the terms that apply to your specific situation will depend on the laws of the state of residency of your ward, or person to whom the conservatorship or guardianship applies.
Difference between conservatorship and guardianship
In many states, a guardianship gives a person control over the personal, day-to-day decisions of a ward, while a conservatorship provides the authority to control another person's financial decisions. However, in some states, guardianship is the term used when the ward in question is a minor, while conservatorship applies to the care of an incompetent or incapacitated adult.
To best determine which term applies to your situation, you should look into how your state defines and applies both of these terms. Regardless of the definition, most states require an application or petition to the state courts to obtain the legal authority associated with conservatorship or guardianship. The actual steps of the process differ by state, so be sure to research what information you need to file as well as the filing and court dates you need to track .
Some states recognize the concept of a limited conservatorship, in which the court appoints a conservator the responsibility of caring for a conservatee, or an adult with developmental disabilities who is unable to take care of themselves either personally or financially.
There are usually two types of limited conservatorship available:
- Limited conservatorship of the person. The conservator is responsible for taking care of the personal needs of the conservatee.
- Limited conservatorship of the estate. The conservator is responsible for taking care of the financial needs of the conservatee.
While one person might take on the responsibilities of both types of limited conservatorship, it's also not unusual to have one person appointed the conservator of the person while another is given responsibility as conservator of the estate.
While states often define the term guardianship differently, within the context of estate planning purposes, legal guardianship generally refers to designating a person in a will to have legal responsibility for the child or children of the person who made the will, in the event of the death of both parents. If you do not designate a legal guardian in your will before you pass, the court will decide what happens to your children.
In addition to selecting a person you feel will take proper care of your children if anything happens to you, it's also important to discuss your decision with the person you've chosen. Becoming a legal guardian comes with a lot of responsibilities, so you want to be sure the person you designate is willing to take on the role.
In some cases, parents may find themselves in need of a temporary guardian for their children. For example, if you and your spouse or partner will be out of the country for an extended period of time, it's prudent to appoint a temporary guardian to take care of your children's needs, both personal and financial, while you are away.
Application can be made to the courts to appoint a temporary guardian, but depending on the jurisdiction in which you reside, you may also be able to appoint a temporary guardian on your own by using a letter of guardianship. If you decide to do so, care should be taken in drafting the document so that it's clear exactly what authority and responsibilities the temporary guardian will have.
Regardless of whether the temporary guardian is appointed by the court or through some other means, temporary guardianships generally have a set time period during which legal responsibility over the child or children is granted. Once this time period is up, the temporary guardianship comes to an end.
Both conservatorships and guardianships are important concepts that should be addressed during the estate planning process. Because state laws vary in the way they deal with these terms, it is important to properly research the requirements of the state in which you reside and learn what term is applicable to your particular scenario.