Guardianship and conservatorship are two of the most important — and most frequently confused — legal concepts in elder law and estate planning. Both involve a court appointing someone to make decisions on behalf of a person who can no longer make decisions for themselves. But they cover different types of decisions and work in different ways.
Understanding the difference between a guardian and a conservator can help families make better decisions about planning for incapacity — and can help them avoid the costly and emotionally difficult court process that guardianship and conservatorship require.
The Basic Difference
The simplest way to understand the difference is this:
A guardian makes decisions about a person’s life — where they live what medical care they receive and how they spend their days.
A conservator makes decisions about a person’s money and property — managing finances paying bills and protecting assets.
In many cases the same person serves as both guardian and conservator. In other cases different people serve in each role — for example a family member might be the guardian while a bank or professional fiduciary serves as the conservator.
Both roles require court approval and ongoing court supervision. This is one of the key reasons why advance planning — using powers of attorney and other legal documents — is so important. Proper planning can avoid the need for guardianship and conservatorship entirely.
What Is a Guardian?
A guardian — sometimes called a guardian of the person — is a person appointed by a court to make personal decisions on behalf of someone who lacks the mental capacity to make those decisions for themselves. The person who needs a guardian is called the ward.
What decisions does a guardian make?
A guardian typically has authority to make decisions about where the ward lives — whether at home in assisted living or in a nursing home — what medical treatments the ward receives — what activities the ward participates in — and other personal and lifestyle decisions.
When is a guardian needed?
A guardian is needed when a person lacks the mental capacity to make personal decisions for themselves and there is no valid healthcare power of attorney or advance directive in place that designates someone to make those decisions. Common situations include severe dementia advanced Alzheimer’s disease traumatic brain injury severe mental illness and intellectual disabilities.
How is a guardian appointed?
Guardianship requires a court proceeding. A family member or other interested party files a petition with the court requesting appointment as guardian. The court evaluates medical evidence of the proposed ward’s incapacity typically requires a physician’s statement and may appoint a guardian ad litem — an independent attorney who represents the proposed ward’s interests. If the court finds that the person lacks capacity and that guardianship is necessary it appoints a guardian.
What are a guardian’s ongoing responsibilities?
A guardian must act in the ward’s best interests at all times. In most states guardians are required to file annual reports with the court documenting the ward’s living situation health status and general wellbeing. The court retains ongoing oversight of the guardianship.
Limited guardianship
Courts can appoint a limited guardian who has authority only over specific decisions rather than all personal decisions. For example a limited guardian might have authority over medical decisions but not over where the person lives. Courts are increasingly using limited guardianships to preserve as much of the ward’s independence and autonomy as possible.
What Is a Conservator?
A conservator — sometimes called a guardian of the estate or a guardian of property — is a person appointed by a court to manage the financial affairs and property of someone who lacks the capacity to manage their own finances. The person whose finances are being managed is called the conservatee or ward depending on the state.
What decisions does a conservator make?
A conservator typically has authority to manage the conservatee’s bank accounts and investments — pay bills and living expenses — collect income — file tax returns — manage real estate — and handle other financial matters. In some states the conservator also has authority to make gifts or transfers of assets subject to court approval.
When is a conservator needed?
A conservator is needed when a person lacks the mental capacity to manage their own finances and there is no valid financial power of attorney in place that designates someone to handle financial matters. Common situations include severe dementia financial exploitation by a third party and situations where a previously appointed agent under a power of attorney has died or become incapacitated.
How is a conservator appointed?
Like guardianship conservatorship requires a court proceeding similar to the one described above for guardianship. The proposed conservatee has the right to contest the conservatorship and to have an attorney represent their interests.
What are a conservator’s ongoing responsibilities?
A conservator must manage the conservatee’s finances prudently and in the conservatee’s best interests. Conservators are typically required to file an inventory of assets when appointed and annual accountings with the court documenting all income expenses and asset changes. The court scrutinizes these accountings carefully. Conservators may be required to post a bond to protect the conservatee’s assets.
Limited conservatorship
Courts can appoint a limited conservator with authority over only specific financial matters. This preserves as much financial autonomy as possible for the conservatee.
Guardianship vs Conservatorship — Key Differences
| Feature | Guardian | Conservator |
|---|---|---|
| Decisions covered | Personal — living situation medical care daily life | Financial — money property assets |
| Also called | Guardian of the person | Guardian of the estate or property |
| Person subject to | Ward | Ward or conservatee |
| Court involvement | Required — ongoing oversight | Required — ongoing oversight with financial accountings |
| Who typically serves | Family member trusted friend | Family member professional fiduciary or bank |
| Advance planning alternative | Healthcare power of attorney advance directive | Financial power of attorney |
The Most Important Point — Avoid Guardianship and Conservatorship Through Planning
Guardianship and conservatorship are expensive time-consuming emotionally difficult and permanently remove a person’s legal right to make their own decisions. The court process can cost thousands of dollars in legal fees and court costs. Ongoing court supervision adds additional cost and administrative burden every year.
The good news is that guardianship and conservatorship are almost always avoidable with proper advance planning. The right legal documents put in place before a person loses capacity can give trusted family members or friends the legal authority to make both personal and financial decisions — without court involvement.
Healthcare power of attorney or healthcare proxy
A healthcare power of attorney designates a trusted person — called a healthcare agent or proxy — to make medical and personal care decisions if you become unable to make them yourself. A valid healthcare power of attorney eliminates the need for a guardian in most circumstances.
Financial power of attorney
A financial power of attorney — also called a durable power of attorney — designates a trusted person — called an agent or attorney-in-fact — to manage your finances and property if you become unable to do so yourself. A valid durable power of attorney eliminates the need for a conservator in most circumstances.
Revocable living trust
A revocable living trust with a named successor trustee can also provide for financial management without court involvement if you become incapacitated. The successor trustee steps in and manages trust assets according to the trust terms without needing a court order.
The cost of preparing these documents — typically $500 to $2,000 depending on the attorney and complexity — is a fraction of the cost of guardianship or conservatorship proceedings which can easily run $5,000 to $15,000 or more.
What Happens When There Are No Documents in Place
When a person loses capacity without having executed a healthcare power of attorney or financial power of attorney family members have no legal authority to make decisions on their behalf — even for routine financial matters like paying bills. A bank will not allow a family member to access accounts. A hospital may not allow a family member to make medical decisions. The only remedy is a court proceeding to appoint a guardian and or conservator.
This situation — sometimes called a guardianship crisis — is unfortunately common. It causes enormous stress on families at an already difficult time and results in significant unnecessary legal expense.
The solution is straightforward — execute a healthcare power of attorney and a durable financial power of attorney while you are still legally competent to do so. These are among the most important legal documents any adult can have.
Terminology Varies by State
It is worth noting that the terminology for these roles varies from state to state and can be confusing. Some states use the term guardian to cover both personal and financial decisions. Some use conservator for both. Some states use guardian of the person and guardian of the estate. Some use guardian and conservator as described in this guide.
The underlying concepts — a court-appointed decision maker for personal matters and a court-appointed decision maker for financial matters — are consistent across states even when the terminology differs. An elder law attorney in your state can explain the specific terminology and procedures used in your jurisdiction.
Finding Help
The following resources can help you with guardianship conservatorship and advance planning.
- National Academy of Elder Law Attorneys — NAELA — naela.org — find a qualified elder law attorney in your area
- National Guardianship Association — guardianship.org — information and resources on guardianship
- Your state bar association — most state bar associations have a lawyer referral service
- Eldercare Locator — eldercare.acl.gov — 1-800-677-1116 — can connect you with local legal resources
- Your state court system — most state court websites provide forms and information about the guardianship and conservatorship process in your state
The information in this article is for general informational purposes only and does not constitute legal or financial advice. Guardianship and conservatorship laws and procedures vary significantly from state to state. Always consult a qualified elder law attorney in your state for guidance specific to your situation.