The words “guardianship” and “conservatorship” refer to legal proceedings that appoint a person or organization to care for and decide for someone who cannot do those things for himself. Although the terms are related, is there a difference between a guardianship and a conservatorship for the elderly?
Yes, there is a difference. Although people sometimes use the terms interchangeably, a guardianship is not the same thing as a conservatorship. Guardianships focus on the daily welfare of the senior, and conservatorships deal with the money.
Guardianship in a Nutshell
There are two steps to a guardianship:
- The court declares a person to be incompetent not capable of making or communicating legally binding decisions for herself, due to illness, injury, cognitive impairment, or other reasons. The person is now a “ward.”
- The court appoints someone to serve as the guardian of the ward, to make decisions in the ward’s best interests, such as where she will live, or what medical treatments she needs.
When a person has lost legal capacity, he can no longer sign documents, such as a will, living trust, health care proxy or a power of attorney. An elderly person can lose capacity after a stroke, an accident, an illness or due to a medical condition like Alzheimer’s, or any situation in which he cannot make good decisions for himself or communicate his wishes.
Even though your aging loved one may resist giving up control and may be angry about being found incompetent, it may be necessary to get a guardianship to protect her safety. Some seniors neglect their health and self-care, resulting in malnutrition and deplorable hygiene. Your elderly relative might forget she left the stove on, and accidentally set fire to the kitchen. She may wander the streets and get mugged, lost, or suffer from exposure to the elements. As a guardian, you can arrange for her to live in a safe environment and get the care she needs.
Some courts, including Alabama’s, treat the authority to handle the financial affairs of a senior separately, as a conservatorship. Other courts bundle the powers into one label, as a guardianship. If the court compartmentalizes the two roles separately, one person can fulfill both roles, or one person can serve as conservator and another person can be the guardian. It is best when the guardian and conservator work well together. A conservatorship must go through the courts, just like a guardianship.
A conservator deals with the senior’s cash flow, investments, and expenditures. She oversees the ward’s income and investments, pays the bills and creates a budget to make sure the senior can afford his lifestyle.
It is unnecessary that an individual serve as guardian or conservator. It may be appropriate for an agency or other entity to serve instead of a person, especially when the senior has no family nearby who can or should serve. A lawyer, accountant, or bank can also serve as conservator.
This posting discusses the general law, but the law in your state may be different. Talk with an elder law attorney in your area.
Caring.com. “The Pros & Cons of Guardianship or Conservatorship: How to Know If It’s Right for You.” (accessed November 16, 2017) https://www.caring.com/articles/pros-cons-guardianship-conservatorship
Alzheimers.net. “Making Sense of Guardianship.” (accessed November 16, 2017) https://www.alzheimers.net/guardianship-for-parent-with-alzheimers/
Sollitto, Marlo. “How to Get Guardianship of a Senior.” (accessed November 16, 2017) https://www.agingcare.com/articles/how-to-get-guardianship-of-elderly-parents-140693.htm