Planning for the future should not only focus on what happens after you have passed away. Instead, it is a good idea to plan to protect your personal and financial well-being if you become incapacitated and unable to care for yourself. As an individual, you can execute documents to name someone in the event of this happening. Additionally, if there is else in your family who needs the help, then you can petition the court to appoint a Guardian or Conservator. So who are guardians and conservators exactly? What’s the difference between the two? Let’s discuss the basics.
Guardianships are created by the court to manage the affairs of minors, while conservatorships are created to protect incapacitated adults. Guardians are usually appointed in the event of deceased parents or if the minor’s parents are deemed unfit (e.g., drug use). Officially, “guardianship” is the process required by the court in order to give someone other than a parent custody and authority over a minor child and their property. To appoint a guardian, you would file a petition and seek approval from the court of the nominated guardian.
A conservatorship is a lot like a guardianship because it is also a court proceeding that appoints someone to manage the financial affairs and personal care of a person (a.k.a. “conservatee”). In California, there are two types of Conservatorship:
A conservator can be a family member, friend, or professional.
Guardians and conservators both take over responsibility for making financial and personal care decisions from the individual, just in slightly different ways. For instance, if you are appointed as a guardian for a child, you will be required to assume important duties and take on significant obligations. A guardian can be given custody over the child or control of the child’s estate and property. The guardian is also responsible to the court for all of their own actions, and usually court appointed check-ups are required to make sure everything is going well.
If you find yourself appointed a guardian or conservator, it is crucial that you fully understand your role and obligations so it is a good idea to speak with a qualified attorney to make sure you are properly fulfilling your role.
The primary advantage is that guardianships and conservatorships have court supervision which gives support and guidance for their decisions. Also, because guardians and conservators are court supervised, you can be assured that your family member’s interests are protected.
Almost anything can be transferred. A short list includes the power to: contract; sell, transfer, or convey property; make gifts; incur debts; delegate a power (e.g., establish a power of attorney); waive rights; serve as a fiduciary (e.g., act as a trustee or executor).
In the event of a conservatorship, the lost powers can be altered by the court if the court issues an order or finds that the conservatee has capacity regarding those specific powers.
A conservatorship of an individual typically terminates when the conservatee passes away or regains the ability to handle his or her own affairs. A conservatorship of the estate will end when the estate runs out of money and there are no more finances to oversee. Guardianships can terminate in several ways, including a change in situation where the guardianship is no longer needed or the minor reaches adult age.
At the Carroll Law Office, we only have your family’s best interests at heart. When it comes to family law, we make every effort to understand your unique situation. If you believe that a loved one is in need of a conservator or a guardian, or, if you yourself have been appointed as one, please don’t hesitate to contact us today.
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