Often times, the terms “guardianship” and “conservatorship” are used interchangeably, and in California, the general purposes underlying the two roles is identical: to establish legal decision-making authority in an individual over another person and/or person’s property. Simply put, a guardian and conservator both have the power to make personal and/or financial decisions on behalf of another. This includes decisions about where the person lives, what the person eats, and the activities in which the person may engage.
Although the terms are often used interchangeably, and the underlying purposes are identical, the difference between a guardian and a conservator in California is clear: a guardian is appointed to care for a minor, and a conservator is appointed to care for an incapacitated or incompetent adult.
Guardianship
A guardianship is a court order appointing someone other than the child’s parent to have custody of the child (also called “ward”), manage the child’s property (also called “estate”), or both. When a guardianship of the ward is established, the guardian assumes legal custody of the ward. The guardian’s responsibilities are thus synonymous with those of a parent — i.e., to ensure the health, safety, and welfare of the ward, and/or the ward’s estate. Consequently, the parental rights of the child’s parents are either suspended for the duration of the guardianship or terminated altogether.
Guardianships may arise under many circumstances. For example, a guardian may be appointed in probate, upon the death of the minor child’s parents. In that case, a guardian may be specifically named in the parents’ wills, court-ordered upon petition of the potential guardian and approval by the court, or appointed by the court based on a close or familial relationship with the ward.
Alternatively, a guardian may be appointed upon a court’s determination of “unfitness,” whereby the child’s parents either temporarily or permanently lose their parental rights. In that case, a guardian may be specifically requested by the child’s parents, court-ordered upon petition and court approval (as mentioned above), or appointed by the court based on a close relationship (as mentioned above).
Conservatorship
A conservatorship is a court order appointing a reasonable person or organization (also called “conservator”) to care for another adult (also called “conservatee”) who is either physically or mentally unable to handle his or her own personal and/or financial affairs. There are two types of conservatorships: Probate and Lanterman-Petris-Short (LPS).
Probate conservatorships are the most common and, as evidenced by its name, arise in the context of probate. Probate conservatorships can be categorized as either general conservatorships or limited conservatorships. The difference between general and limited is the extent of oversight that is necessary based on the conservatee’s needs: i.e., a general conservator is appointed for an adult who cannot take care of himself or his finances, and a limited conservator is appointed for an adult who cannot completely care for himself or his finances but does not need the higher level of care or help as in the general form.
LPS conservatorships do not arise in the context of probate. Rather, these conservatorships are used for people who usually need very restrictive living arrangements and require extensive mental health treatment. For example, adults with serious mental health illnesses who must live in locked facilities and need very powerful drugs to control behavior. Such individuals may refuse to agree to the special living arrangements and/or treatment on their own, and as a result, are court-ordered into a conservatorship relationship to ensure the individual receives the proper care that he or she needs.
Do you or someone you know need a guardianship attorney? Contact Bremer Whyte Brown & O’Meara to learn more about your options.