Are Conservators and Guardians the Same?

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Conservators and guardians are not the same.

People can lose mental and physical functioning as they age.

For some, these losses are extreme.

For others, they are slow and subtle.

Increasingly, an elderly individual with diminished capacity may require financial and physical support.

According to a the guardianship and conservatorship sections on at ElderLawAnswers and, those who have not done their estate planning may be placing themselves at the mercy of the court.

Guardians and conservators are not the same.
Courts appoint conservators and guardians.

How so?

The court may need to appoint a guardian and conservator for them.

How are they different?

A guardian is appointed by the court to manage the healthcare and non-financial decisions for an incapacitated individual.

A conservator is appointed by the court to handle the financial affairs of the incapacitated individual.

How are guardians and conservators appointed?

The court attempts to find the most competent individual.

To qualify, the individual must be over age 18.

Typically the court will look first at the spouse of close family member.

If there is no spouse or the spouse is unwilling or unable to serve, then the search may expand to other family members and even friends.

Should no friend or relative be available, the court may appoint a professional guardian or conservator, such as an attorney.

If appointed, can you relinquish your appointment if you know longer want to serve?

This depends.

You must petition the court to relinquish your role and have someone else appointed in your stead.

It is usually best to have the replacement in mind when petitioning the court.

Court proceedings can be long and costly.

Against this backdrop, what arrangements have you made about your own incapacity planning?

If you would rather have your fundamental personal, health care, and financial decisions made by those you know and trust instead of by guardians and conservators chosen by a judge (who likely does not even know you), then you should contact an experienced estate planning attorney without delay to prepare your advance health care directive and general durable power of attorney.

Resources: ElderLawAnswers. (Accessed November 29, 2019) (Accessed November 29, 2019)

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