Most people have no idea what conservatorship or guardianship is, let alone the difference between the two. And for good reason! These two words can mean completely different things depending on which state you live in. For example, California and Texas have totally separate interpretations of guardianships. This makes the conservatorship vs guardianship question a confusing one for many.
If you need to set up a way to care for a loved one’s personal affairs or financial affairs, it’s crucial that you learn about this before getting mired in the minutiae of legal paperwork. In this article, we’ll discuss what conservatorship is, what guardianship is, and how the conservatorship vs guardianship comparison sizes up in the Golden State.
Conservatorship vs Guardianship: California Guardianships
In California, guardianships have one clear main distinction: they pertain to minors only. Although this isn’t true in other states, adults in California cannot qualify for guardianships. This is the primary difference between conservatorships and guardianships in California. If you’re looking to make personal decisions or oversee the financial affairs of an adult, please skip to the next section.
In most cases, a parent or parents look after a child. However, sometimes, another guardian has to gain legal authority to manage a child’s affairs through a legal proceeding. This can happen due to a variety of personal matters on the part of the parent or parents. Common causes of guardianship include:
- An incapacitated person who cannot care for their child
- The death of a parent
- A parent who is struggling with drug or alcohol addiction
In some cases, the court may set up a temporary guardianship, while in others a permanent guardianship may be in order. Sometimes a guardian is a relative, while in other cases the court may choose professional guardians. Every scenario is different.
Guardianship of the Estate vs. Guardianship of the Person
The distinction between guardianship of the estate and guardianship of the person is important because it affects the guardian’s responsibilities. In some cases, the term “guardianship” includes both the estate and the person, but sometimes these areas are managed by two separate people. Here’s what each type of guardianship entails.
Guardian of the Estate
A guardian of the estate is responsible primarily for the child’s finances. This can include dealing with any property, income, or other assets for the period of time until the child turns 18.
Not every child needs a guardian of the estate. This only applies if a minor own large assets like real property (real estate) or value stocks. This may happen if the child inherits assets from a deceased relative, for example. A child receiving welfare payments or owning some valuable items (like a gaming system) does not qualify for guardianship of the estate.
A guardian of the estate is responsible for protecting the child’s assets and making financial decisions with the child’s welfare in mind. The legal process has protections against a legal guardian who uses their undue influence to steal or personally gain from their position.
Guardian of the Person
A guardian of the person is responsible for managing the day-to-day activities and personal decisions for the child. For instance, they might make sure the child gets to school, eats meals, bathes, etc. A guardian of the person also helps children deal with medical issues and emotional problems. They may work closely with a social worker and mental health professionals.
A legal guardian of the person’s main responsibilities include providing:
- Basic needs like food, water, living arrangements, and clothing
- Medical decisions and other health care decisions
- Education (keeping the child in school, arranging for transportation, etc.)
- An environment conducive to emotional and physical growth
Guardianship vs. Adoption in California
Many of a public guardian’s responsibilities intersect with those of an adoptive parent. However, keep in mind that legal guardianship is also not equivalent to adoption. Here are three key differences:
Parental Involvement: In guardianship, the parents of the child maintain legal rights and are often still in the picture in some way. For example, they may want visitation rights.
Guardianship Termination: If the minor child’s parents regain the ability to care for the child—for example, they pursue needed medical treatment or go through steps to become a more responsible person—the legal guardian may be asked to step down so the parent can regain custody.
Court Supervision: The court oversees guardianships to make sure the guardian is doing a good job and is not abusing their power. An adoptive parent, on the other hand, acts much more like any other parent without constant supervision.
Conservatorship vs Guardianship: California Conservatorships
Unlike guardianship, in California, a conservatorship is for an adult individual who needs help. The adult may be incapacitated, elderly, disabled, or otherwise unable to care for themselves. For example, conservatorships are often recommended for individuals who have Alzheimer’s disease, dementia, or severe developmental disability to ensure that they receive proper care and treatment.
There is an array of conservatorships out there. The type of conservatorship varies according to:
- The time period (permanent conservatorship vs. the powers of a temporary conservator)
- The extent of powers (limited conservator for a limited conservatorship, for example)
- Conservatorships for special circumstances, such as an LPS conservatorship
There are temporary guardianships as well, but a conservatorship proceeding does have more variety. This is simply because the amount of care an adult needs varies a lot more than the amount of care a child needs.
Usually, a conservator is a relative or loved one of the conservatees (the person who needs help). They may be an adult child of an elderly person, for example. However, when such a person is not available, the court may consider professional conservators for the role.
Also known as a private conservator, a professional conservator is a professional person qualified to make responsible decisions. They may work with people with a mental disorder or disabled persons, and they advocate for conservatees’ personal rights in a conservatorship. However, such arrangements can be expensive and are not usually the first choice of the court.
Conservatorship of the Estate vs. Conservatorship of the Person
Just like with guardianships, in California, there are two different areas a conservatorship can cover. A conservatorship of the estate and conservatorship of the person acts very similarly to their guardianship counterparts.
Conservatorship of the Estate: A conservatorship of the estate is for an individual who is mentally incapacitated and unable to handle their finances. In these cases, the conservator makes sound decisions regarding the individual’s money, property, and other financial matters. They may help the conservatee pay their bills or make decisions about major transactions and other financial functions.
Conservatorship of the Person: A conservatorship of the person, on the other hand, involves caring for the person subject to the conservatorship. The conservator must help arrange for the basic needs, medical care, and physical and emotional wellbeing of the individual on a regular basis. For persons with a physical or mental illness or an incapacitated adult, this often involves making legal arrangements for long-term care. A health care directive may also come into play.
How to Pursue a California Conservatorship vs Guardianship
The methods for filing for a California conservatorship and a California guardianship are not exactly the same. There is a lot of paperwork involved for both, though, and it’s imperative that it’s all filled out completely and correctly. Consider using A People’s Choice to assist with your documents every step of the way for a smooth, easy process. That being said, here’s how it works in both cases.
Setting up a California Guardianship
To set up guardianship in California, go through the following steps. If you’re thinking about guardianship planning, these are good to keep in mind.
- Fill out and triple-check your legal documents. There are a lot of different legal forms involved in filing for guardianship, and it’s crucial to fill your forms out correctly and completely. Otherwise, you could end up delaying the guardianship or incurring an extra filing fee.
- File your forms with the court clerk. Once your forms are complete and correct, make multiple copies of them (at least three) and go to the courthouse. You’ll need to pay a filing fee and file the forms there. Waivers are available for those in financial need.
- Get consent and inform people. As an added degree of protection for the child, this is an important step. People who agree with the guardianship arrangement should fill out and sign a specific form. For anyone who doesn’t agree and for specific agencies like human and social services, you have to arrange for a server to serve copies of the forms. You’ll then need to have your server give you a completed proof of services form to file with the court.
- Prepare for and go to your court hearing. You must speak with a court investigator before your hearing. This person recommends you (or not) to the judge. This step involves home visits and other checks to ensure the personal care and individual rights of the child will be met.
- After a successful hearing, you must file the court order with the court clerk. This is true for a permanent guardianship petition and all other types of guardianship petitions.
Setting up a California Conservatorship
To petition for conservatorship, you have to go through many of the same steps as the above. Here are two main differences between a conservatorship proceeding and a guardianship proceeding.
Interested Parties: You must inform the would-be conservatee that you’re filing for conservatorship. The persons you must inform are also different. While you must inform a child’s parents and grandparents of a guardianship petition, for example, you have to inform an incapacitated adult’s grown children about a conservatorship hearing.
Conservatorship Bond: You must acquire a conservatorship bond to become a conservator. This step is meant to protect the conservatee should something go wrong. You can learn more about this financial transaction in our article about conservatorship bonds.
A People’s Choice Can Help with Your Conservatorship or Guardianship Case
We hope this article has helped you determine whether you need guardianship or conservatorship and whether you need control of the estate, person, or both. If you need more information about different kinds of guardianships and conservatorships, check out our many other blog articles on these subjects. You can learn about probate conservatorships, limited conservatorships, temporary conservatorship, power of attorney, medical power and other special powers, and much more.
When you’re ready to set up your conservatorship or guardianship, consider using A People’s Choice. We can help you with all the legal documents you’ll need to sail through the conservatorship process or guardianship process. We also come at a fraction of the cost of a lawyer. Contact us today to get started!
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