Guardianships and conservatorships are tricky legal processes. For many people enquiring about putting one of these systems in place, they have no idea where to start – unsure which one they should even be considering. These terms can be used differently state by state, so it’s vital that you look into the range of powers and responsibilities given to conservators and guardians where you live. But, to make things a little easier, here’s a guide to all the essential information you need to know.

This blog defines both guardianships and conservatorships, discussing what they are, who they’re for, and how one is put in place. For more personalized advice regarding your situation, contact J Mishkin Law today.



What is Conservatorship?

The term ‘conservator’ generally refers to an individual who is court-appointed to manage somebody else’s finances on their behalf. Conservatorships are granted when a person is unable to appropriately manage their own financial affairs due to injury, illness, or some other situation that has left them incapacitated. The specifics of what is required of a conservator entirely depend on the condition, needs, and financial situation of their loved one. Tasks that may be expected of a conservator include:

Paying bills
Paying healthcare expenses
Managing debt and debt payments
Managing government benefits such as Social Security or disability benefits
Handling budgeting and accessible funds
Managing different funds, such as investment accounts


What is Guardianship?
Guardianship is a legal role, assigned to an individual by the court. While conservators handle financial affairs, a guardian covers a larger scope of duties. Generally, guardianship plays a larger role in a person’s daily needs, making decisions to help care for a person unable to care for themselves. This could involve being tasked with responsibilities such as:

Transitioning somebody into an assisted living facility or nursing home care
Making healthcare decisions on their behalf
Choosing where they’ll live
Making executive decisions on important matters, not just limited to financial issues
Legal guardianship applies to a wide range of situations, not only in the case of illness, injury, or age leaving somebody incapacitated to care for themselves. A parent may appoint a legal guardian for their children in their will, for example, in the event that they pass away before their child is legally an adult. This would involve ensuring the child’s day-to-day needs are fulfilled, managing their education, and making medical decisions.

https://jmishkinlaw.com/blog/guardianship-vs-conservatorship...

incapacitated

The term incapacitated is referring to one's physical or mental inability to manage one's own affairs. Incapacity is a consideration in various areas of the law, notably wills and estates. Indeed, a will may be found void where it can be shown that the testator was mentally incapacitated upon its execution. Under California law, there is a presumption of sound mind when a will is executed. As a result, the party asserting testamentary incapacity must present substantial evidence showing otherwise and must also prove that the will was not made during a lucid interval. Establishing testamentary incapacity goes beyond a showing of extreme sickness or old age, and requires, for example, insane delusion.

Indiana courts have stated that the trial court shall appoint a guardian if the trial court finds that: "(1) the individual for whom the guardian is sought is an incapacitated person or a minor; and (2) the appointment of a guardian is necessary as a means of providing care and supervision of the physical person or property of the incapacitated." This appointment adheres to state statutes, which generally state the priority of persons who may be considered, starting with a person designated by the incapacitated while he or she was able or a person granted power of attorney.

https://www.law.cornell.edu/wex/incapacitated