Guardianships and conservatorships exist to help people who can’t always help themselves. However, unlike other states, California defines guardianship and conservatorship as two completely different arrangements. Both have to do with caring for someone who can’t care for themselves, but they have separate meanings and applications. So, what is guardianship and conservatorship in the golden state?
The type of care administered to this group of individuals varies based on the need for personal care or help with managing personal property or finances. In this article, we’ll give a plain English explanation of guardianship and conservatorship to ensure you have a good perspective of these two commonly used terms.
When Are Guardianship and Conservatorship Needed?
When a person finds it hard to manage their personal affairs, the court applies a legal process of guardianship or conservatorship to appoint someone to help them. For children, this can simply be because they are minor children and therefore can’t legally care for themselves. For adults, it often involves a degree of incapacitation.
The term “incapacitated” doesn’t necessarily mean a person is unable to do anything. It just means that a person is impaired and doesn’t have the knowledge and ability to make specific key personal decisions on their own. They can’t address personal needs like:
- Health care decisions
- Basic survival needs like food, shelter, and clothing
- Financial decisions
How The Court Handles Requests for Guardianship and Conservatorship
A guardian or conservator often receives durable power to make sound decisions on behalf of the incapacitated person in some but not all areas of their life (limited power of guardianship or conservatorship). It’s the solemn duty of the court to establish whether the individual is actually incapacitated or not.
The court only opts for full guardianship or conservatorship as a last resort when no other system of support or proper care is available to the incapacitated person. When put under any kind of guardianship or conservatorship, however, incapacitated persons won’t lose their fundamental rights. This includes the right to personal privacy and the right to vote, although sometimes voting can be restricted in other ways for those with mental illnesses.
What Alternatives Exist for Guardianship and Conservatorship?
The court in California encourages other less restrictive public service options before settling for either guardianship or conservatorship. Alternatives to guardianship or conservatorship include:
- Setting up a health care directive
- Getting a case manager
- Choosing a revocable living trust
- Setting up powers of attorney
- Naming a representative payee for social security benefits
What Is Guardianship and Conservatorship? What Are the Differences?
In the US, the definitions for guardianship and conservatorship vary from state to state. In California, guardianship primarily applies to minor child under the age of 18 who cannot handle their personal affairs and needs additional parental rights. That means if you’re looking for a solution for an ailing elderly relative, guardianship is not the answer.
Conservatorship, however, might be your solution. It applies to anyone above 18 years (an adult) who cannot handle their own affairs. It’s actually a form of adult guardianship, although California does not use that terminology.
There are some other words you might hear associated with these arrangements. A minor child with a private or public guardian is known as a “ward,” while an individual subject to conservatorship is called a “conservatee.” Further, the person appointed to offer guardianship duties is known as a “guardian” while the person who helps the conservatee is called a “conservator.”
What Powers Does a Guardian or Conservator Have During Guardianship and Conservatorship?
When the circuit court appoints you a guardian or conservator, it gives you special powers over the ward or conservatee. As a guardian or conservator, you should talk to the person under your care if they are capable of speech. That way, you ensure you take their wishes into account.
Both guardianship and conservatorship have two areas in which they can be active. Here’s a basic explanation of each.
Powers over the Person
Powers over the person allow you to make basic arrangements to care for the individual. The law demands that you act in the best interest of the person under your guardianship or conservatorship. These powers include the ability to:
- Make living arrangements
- Make a medical decision on issues like type of care or therapeutic treatment
- Make arrangements for food, clothing, personal care, transportation, and recreation
- Report to the court about the individual’s current status
Powers over the Estate
Powers over the estate give you control over the person’s financial affairs and personal property. Therefore, you’ll have the powers to:
- Find and take control of the individual’s assets and property
- Make a budget
- Manage financial income, financial transactions, and other business affairs
- Pay bills for the individual
- Choose a good insurance policy for a person
- Collect income meant for the individual, including governmental benefits
- Use an informed decision to invest on behalf of the individual
- Protect the assets of the individual from any harm
- Stay accountable to the court and the individual
Most minors do not need a guardian with powers over the estate to manage their financial affairs. This only applies if the child has inherited large assets and does not apply to normal possessions (such as pricey toys) or social security benefits. A child whose parents passed away and left the property, for example, may qualify.
The Rights of the Conservatee or Ward
During guardianship & conservatorship, the ward or conservatee also has some legal rights that the guardian or conservator must adhere to. The court usually outlines some of these rights before the onset of a guardianship or conservatorship begins.
Generally, these individuals have the right to:
- Medical treatment when sick
- Personal respect. This includes respect to their religious beliefs and medical preferences
- Personal privacy
- A guardian or conservator that addresses their needs
- Control over their personal belongings like furniture, vehicles, clothes, and gifting of assets
- Guests and visiting others
- Marriage and relationships
- Whether or not to have children or opt for sterilization
- Attorney to represent them when seeking assistance with finances petitions
- Voting rights during elections
- A health care agent
- A change in their current conservator or guardian
How Do You Set Up a Guardianship or Conservatorship?
When seeking minor guardianship or adult conservatorship, there is a process one must follow. When a person wants to become a guardian or conservator, here is the basic protocol.
1. Gather Evidence
In your petition for the appointment, you must show clear evidence (through public records) that the incapacitated individual needs personal assistance due to poor physical or mental health. At times, things may become complicated if the person who needs help doesn’t agree to this form of legal relationship.
3. File a Request
File your request (petition) in court. During the initial filing, the incapacitated person also receives notice of the petition. Vulnerable persons also have the right to a lawyer. If the person with disabilities can’t afford legal advice, the court may order the county where one comes from to cater for their attorney fees.
3. Receive the Decision
If the court agrees to the petition for guardianship or conservatorship, it outlines the type of protection that the incapacitated person should receive. Based on the type of court order, the guardian or conservator may have full powers or limited powers over the ward or conservatee.
Who Can Be Appointed Guardian or Conservator?
It’s the role of the court to oversee the appointment of a legal guardian or conservator. During the appointment period, the court might select:
- An agent that the incapacitated person had appointed in their power of attorney or health care directive
- An adult child to the incapacitated person
- A spouse to the incapacitated person or anyone else nominated in their will
- Someone that has fulfilled the education requirement to work as a professional guardian or conservator
- A relative who’s currently caring for a child
Other Forms of Appointment
One common question is whether the court can appoint a paid caregiver as guardian or conservator. The short answer? No. The law prohibits paid caregivers from nursing home residences or those who work as medical care providers from serving as guardians or conservators to an incapacitated person.
Yet another common question pertains to the number of helpers involved. For example, can a protected person have two people as guardians or conservators? Yes, it’s possible!
Here’s an example: a senior adult ailing from advanced dementia has two adult children willing to care for her. What does the court do in this case? The probate court may appoint both adult children as co-conservators to the elderly parent suffering from advanced dementia. Both adult children can make responsible decisions about their mother’s real estate, physical health, and other important issues.
Do You Have Any Questions about Guardianship and Conservatorship?
If you need further guidance about guardianship and conservatorship, A People’s Choice is the right place to seek help! With our great team of legal document assistants, we can help you fill out all the paperwork you need to set up a conservatorship or guardianship. Our affordable services come at a fraction of the cost of hiring a lawyer. Call us today at 800-747-2780 to get started!
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