Guardianship and Conservatorship

Depending on the state you live in, the term “guardianship” or “conservatorship” describes proceedings which gives an individual authority over an individual’s personal affairs. Definitions you should know before reading further include:

  • Conservatee: a person whom the court has determined (due to physical or mental limitations or age) requires a conservator to handle his/her financial affairs and his/her personal activities
  • Conservator: a guardian or protector appointed by a judge to protect and manage the financial affairs and/or the person’s daily life due to physical or mental limitations or old age
  • Conservatorship: a conservatorship is created by the appointment of a conservator.

Conservatorship is imperative after an individual becomes incapacitated. It is a necessary measure when someone is unable to manage his/her own financial affairs and personal care and cannot delegate these duties to another (for example, through power of attorney, a living trust or other means).

A conservator makes decisions about personal matters such as medical care, food, clothing and residence. A conservator of the estate is responsible for handling the financial affairs (collecting assets, paying bills, making investments and so forth) of a conservator.

How is a conservatorship established?

A relative, friend or public official can petition the court for the appointment of a conservator of an individual. In order for this petition to be granted, it must establish why an individual can no longer manage his/her financial fairs or make decisions concerning their personal care.

After a petition is filed, a court investigator interviews the proposed conservatee. Then the investigator reports back to the court about whether or not the appointment of a conservator is justified. The incapacitated person can protest the establishment of a conservatorship. If this occurs, a court hearing is then set for the purpose of determining whether or not the conservatorship is necessary. In this instance, the conservatee must appear in court (unless he/she is medically unable to).

It is up to the judge and his/her interpretation of the petition, the investigator’s report and any other evidence as to whether or not the conservatorship is required. Unlike in a guardianship, in a conservatorship, a conservator does not have control over the decisions regarding the disabled’s health (their body and medical care). A conservatorship is only put in charge of the conservatee’s finances and possessions. For example, it is okay for the conservator to determine how much money can be spent on food and how much should be set aside for medical care, but he/she is not responsible for dictating what kind of medical care should be used.

What is a guardianship?

The difference between a guardianship and a conservatorship has been defined as follows:

  • In the case of a guardianship, a guardian is lawfully authorized to make decisions in place of an adult, whom the court has determined is incapable of caring for himself/herself
  • In the case of a conservatorship, a conservator is authorized to make decisions regarding the real and personal property of an adult whom the court has determined is incapable of making such decisions
  • Guardianships are considered to be a last resort, due to the seriousness of the loss of individual rights (the court can order a full or limited guardianship for an incapacitated individual)

As explains,

Generally, the process begins with the determination of incapacity and the appointment of a guardian. Interested parties, such as family or public agencies, petition the court for appointment of guardians. The court is then responsible for ensuring that the alleged incapacitated person’s rights to due process are upheld, while making provisions for investigating and gauging the extent of incapacity, if any. Should the individual be deemed incapacitated, the judge appoints a guardian and writes an order describing the duration and scope of the guardian’s powers and duties. The court also holds the guardian accountable through monitoring and reporting procedures for the duration of the guardianship and can expand or reduce guardianship orders, remove guardians for failing to fulfill their responsibilities, and terminate guardianships and restore the rights of wards who have regained their capacity.

Guardianship Risks

In their 2008 book, “Guardianship of the Elderly Past Performance and Future Promises,” Brenda Uekert and Thomas Dibble noted the five major challenges for the court when establishing a guardianship:

  • The collection of data
  • Determining capacity
  • The costs associated with administering a guardianship
  • The training and education standards for judges and court staff
  • Court monitoring of guardianships

According to, “When applied to the U.S. adult population, this would mean there are 1.5 million active pending adult-guardianship cases.” The site went on to speculate that the number could actually be as high as three million. The website goes on to explain that the General Accountability Office found cases where guardians were stealing assets from their incapacitated victims and cases in which guardianship certifications were invalid or where guardians used fictitious identities.

Resources Available to You

The guardianship process is hampered by lack of education. In order to protect yourself and your future, it is imperative that you do not remain in the dark but take advantage of the legal resources available to you. Whether you are aging and in poor health, have already been rendered incapacitated or whether you are a family member looking out for your father, mother or grandparent, our site has the information you are searching for. Besides perusing, you can also learn more about guardianship and conservatorship by checking out the following National Center for State Courts (NCSC) and United States Government Accountability Office (GAO) links:

For more legal counsel and answers, find a guardianship or conservatorship attorney near you today by checking out our “Find an Attorney” page.