As the children of the elderly come to grips with the possibility that their parents may be in a process of mental decline, they need to consider whether they should initiate a guardianship and/or a conservatorship proceeding. What’s the difference, and what is their purpose?
GUARDIANSHIP
A guardianship case involves a petition to the court alleging that the person to be protected (sometimes referred to as the ‘ward’) has mental or other health issues that could create a danger to the health or safety of the ward. For example, an elderly person with dementia living alone may forget to turn off a gas stove after cooking a meal. Or, the person suffering from dementia has other health issues that require taking medications at a specific time, and the ward may be forgetting to take those medications, or even taking too large a dose.
In guardianship cases, the proposed guardian is given the right to care and control the activities of the ward. For example, the guardian may conclude that the ward should be living in an assisted living facility instead of living alone in an apartment. The judges who are assigned to hear guardianship cases will not simply grant the guardianship when the adult child files a petition. Generally, the judge will assign one or more persons to act as an advocate for the proposed ward, appoint a temporary attorney, and order a medical or psychological exam. These steps are obligations imposed by statute to ensure that the ward is not taken advantage of or is not unnecessarily deprived of their freedom and liberty.
Guardianships are not confined to elderly persons. For example, if a married couple has a child with Downs Syndrome who requires close care and maintenance, a guardianship must be filed when the child turns 18; otherwise, the loving parents have no legal right to assure the safety of their child.
CONSERVATORSHIP
A conservatorship, on the other hand, is sought in cases where the elderly person can function well in undertaking the needs of daily living, but has become unable to properly handle their finances. In such situations, if the court grants a conservatorship, the petitioner who files for the conservatorship is given the right to handle the person’s financial affairs, pay their bills, and ensure that that person is not financially exploited by unscrupulous scammers.
When a guardianship petition is filed, generally a petition for conservatorship is filed with it. On the other hand, the filing of a conservatorship may not also require a guardianship.
In both conservatorships and guardianships, state statutes mandate that the judge appoint objective independent persons to conduct an investigation and make recommendations as to whether either of these constraints on a person’s liberty are truly necessary.