It’s easy to confuse guardianships and conservatorships because the meaning of the terms varies from state to state. In some states, the term “guardian” means a person with legal authority to act on behalf of an adult, whereas in California, the term applies to someone with legal authority over a minor.
At Barr & Douds, our probate attorneys frequently assist clients in distinguishing between guardianship vs. conservatorship proceedings in California. These legal mechanisms provide vital protection for vulnerable individuals, but many people remain confused about their differences and appropriate applications. This article describes California guardianships and conservatorship processes, their similarities and differences, and what guardians and conservators do.
Key Terms Explained
Before diving into the details, let’s clarify the fundamental terminology:
- Guardianship: Legal proceedings through which the court appoints a person (guardian) to take legal responsibility for a minor child (under 18) when the child’s parents are unable or unwilling to provide proper care.
- Conservatorship: Legal proceedings through which the court appoints a person (conservator) to manage the personal affairs, financial affairs, or both for an adult who is deemed incapacitated or unable to manage their own affairs due to physical or mental illness, developmental disabilities, or age-related conditions.
What Is a Guardianship?
A guardianship is a probate court proceeding whereby a person is given legal authority over a minor (a person under age eighteen). A guardianship is unnecessary if one or both parents are alive and willing and able to care for the child, so many guardianship cases are initiated after a tragedy or some other unfortunate event.
When Is a Guardian Appointed?
If parents with minor children create a will, they usually nominate a guardian in their will, although some attorneys draft separate documents nominating guardians. If a parent dies with a will nominating a guardian, the nominee does not automatically become the guardian upon the parent’s death. His or her authority does not begin until the court grants a guardianship petition and signs an order appointing the nominee as guardian.
The nominated guardian will generally be appointed by the court, absent objections and subject to certain exceptions. The guardianship petition must be served on the parents’ relatives, who may appear in court and object to the guardian nominated in the will. For example, if a parent nominates a guardian and dies several years later, the nominee’s personal or financial circumstances may have changed: he may have moved out of state, fallen on hard times, gone bankrupt, become addicted to drugs or alcohol, or gotten married and had children. In these circumstances, the nominee may no longer be an appropriate choice, and a family member might object to their appointment.
Most parents who consider nominating a guardian envision the horrific possibility of both parents dying at the same time. (Air travel often causes these concerns.) Thankfully, this rarely happens. A much more common scenario is a single parent becoming addicted to drugs or alcohol, rendering them unable to care for their children. This heartbreaking scene unfolds frequently in probate courts throughout California, as grandparents plead with judges to give them legal custody of their minor grandchildren because their son or daughter is incapable of caring for them.
Types of Guardianships
Several types of guardianship exist to address different needs:
- Guardian of the person: This guardian has authority over the minor’s personal affairs, including:
- Deciding where the child lives
- Making educational choices
- Authorizing medical care and health care decisions
- Overseeing the child’s physical well-being
- Managing day-to-day decisions similar to a parent
- Guardian of the estate: This guardian manages the minor’s finances and property, including:
- Protecting inherited assets
- Managing income from trusts or other sources
- Filing required financial accountings with the court
- Making financial decisions on behalf of the minor
- Temporary guardianship: Sometimes the court appoints a temporary guardian for a limited time during emergencies or while permanent guardianship proceedings are pending.
Guardianship vs. Adoption
While both provide care for children, guardianship proceedings and adoption proceedings differ significantly. Guardianships apply only until the child turns 18 and does not terminate the legal relationship between the child and biological parents. In contrast, adoption permanently transfers all parental rights and responsibilities to the adoptive parents.
What Does a Guardian Do?
A guardian of the person may welcome the minor into their home and functions essentially as a parent, making decisions about:
- Education and school enrollment
- Medical treatment and healthcare providers
- Religious upbringing
- Social activities and extracurricular involvement
- Daily care and supervision
A guardian of the estate manages the minor’s financial matters by:
- Preserving assets until the child reaches adulthood
- Providing funds to the guardian of the person for the child’s daily needs
- Directly paying for larger expenses like educational costs, medical treatments, or special activities
- Filing detailed accountings with the court showing how the minor’s assets are managed
When the minor turns 18, the guardianship automatically ends. The guardian files a final accounting and petition to terminate the guardianship, and the court formally concludes the arrangement.
What Is a Conservatorship?
So, is a conservator the same as a guardian? No. A conservatorship is a legal arrangement where the court appoints a conservator to manage an incapacitated adult’s affairs. The key distinction in the guardianship vs. conservatorship comparison is that guardianship applies to minors, while conservatorship relates to adults who cannot manage their own affairs.
When Is a Conservator Appointed?
The court appoints a conservator when an adult is deemed incapacitated due to:
- Severe mental illness
- Advanced age-related cognitive decline
- Serious developmental disabilities
- Catastrophic injury affecting cognitive function
- Any condition preventing the person from making responsible decisions
The process begins with a petition filed by a concerned person (often a family member), followed by court investigation and a hearing where a judge evaluates the proposed conservatee’s capacity and needs.
Types of Conservatorships
California recognizes several types of conservatorships:
- Conservator of the person: This person appointed by the court makes decisions about the conservatee’s living arrangements, medical care, and daily life.
- Conservator of the estate: This conservator manages the conservatee’s financial affairs, including bill payment, asset management, and financial decision-making.
- Limited conservatorship: Designed specifically for adults with developmental disabilities, this arrangement preserves as much independence as possible while providing necessary support.
- LPS conservatorship: Reserved for individuals with serious mental illness who may require psychiatric treatment, these specialized conservatorships require different procedures and medical documentation.
Conservator vs. Trustee
If the conservatee established a living trust before becoming incapacitated, those assets remain under the successor trustee’s control rather than the conservator’s. This distinction often creates a division of responsibility where the conservator manages non-trust assets while the trustee handles trust property.
What Does a Conservator Do?
A conservator of the person makes decisions about:
- Where the conservatee lives
- Medical treatment and healthcare providers
- Personal care arrangements
- Daily activities and social involvement
A conservator of the estate handles financial matters by:
- Managing bank accounts and investments
- Paying bills and taxes
- Applying for benefits the conservatee may qualify for
- Filing regular accountings with the court (typically after the first year and every two years thereafter)
Many conservatorship cases arise when adult children become concerned about elderly parents who may be vulnerable to financial exploitation or unable to care for themselves safely. Common scenarios include seniors living alone without adequate support, adult children taking advantage of parents with diminished capacity, or elderly individuals falling victim to scams targeting seniors.
Protect Your Loved Ones
Guardianship vs. Conservatorship: Key Differences
| Proceeding | Guardianship | Conservatorship |
|---|---|---|
| Who It’s For | Minors (under 18) | Adults deemed incapacitated |
| Reason Established | Parents unable / unavailable to care for child | Adult unable to manage own affairs (financial, personal, or medical) |
| Focus | Child’s well-being (care, custody, control) | Adult’s protection and management of affairs |
| Duration | Ends automatically at age 18 (unless extended by court order in special circumstances) | Continues until no longer needed; may be temporary or permanent; is terminated at death, subject to transition of affairs to the personal representative or successor-in-interest, as applicable. |
| Authority Source | Replaces or supplements parental authority | Substitutes for adult’s diminished decision-making capacity |
| Court Oversight | Varies by jurisdiction; generally less intensive, often annual check-ins | More intensive review, especially of finances; regular reporting required |
| Nomination | Often specified in parents’ will; can be nominated by family or others interested in the child’s welfare | May be nominated in advance directive (Power of Attorney, Living Will); can be nominated by family or others |
| Termination | Automatic at age 18, or upon court order if parental rights are restored or child is adopted. | Requires court order after petition demonstrating recovery or that conservatorship is no longer necessary; or death. |
| Types | Guardian of the person / Guardian of the estate | Conservator of the person / Conservator of the estate |
Which One to Choose: Guardianship or Conservatorship?
When determining whether to pursue guardianship or conservatorship, consider these factors:
Guardianship is appropriate when:
- The person needing protection is under 18 years old.
- Parents are unable to provide care due to death, incapacity, incarceration, or serious issues such as substance abuse.
- The situation requires someone to make decisions for the minor’s welfare and possibly manage assets left to them.
Conservatorship is appropriate when:
- The person needing protection is an adult.
- The adult can no longer manage their personal needs, financial matters, or both due to cognitive impairment.
- Less restrictive alternatives have been explored and found insufficient to protect the person’s best interests.
Both legal mechanisms serve to protect vulnerable individuals, but they apply to different life stages and circumstances. In some cases, a guardianship might transition to conservatorship when a child with severe disabilities reaches adulthood and continues to need supervision and support.
The Bottom Line
Understanding the difference between guardianship and conservatorship is crucial for those facing difficult decisions regarding the care of loved ones. If you’re in California and have a minor child or an ailing parent who could need a guardianship or conservatorship, please feel free to call Barr & Douds Attorneys for a free consultation.
