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. This article describes California guardianships and conservatorships, their similarities and differences, and what guardians and conservators do.
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 obviously 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.
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 their guardianship petition and signs an order appointing them as guardian.
The nominated guardian will normally be appointed by the court, 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.
There are two types of guardians: the guardian of the person and the guardian of the estate. The guardian of the person is given authority over the minor’s personal affairs: where she lives and goes to school, medical decisions— most of the authority of a parent other than control over the minor’s finances, which are controlled by the guardian of the estate. The money may come from an inheritance, from social security, from a trust, or from another source. A guardian of the estate must file accountings with the court that detail the guardian’s management the minor’s money.
A guardianship is not the same as an adoption. Although a guardian has legal authority akin to a parent, a guardianship does not create a parent-child relationship. So, for example, a child does not have a right to inherit from a guardian, and a guardian has no legal duty to the child once the child turns 18 and the guardianship is terminated.
What does a Guardian do?
A guardian of the person typically takes the minor into their own home and performs most of the tasks of a parent. In many cases, the guardian of the person becomes the de facto parent, making personal decisions about medical care, education, and social interactions.
The guardian of the estate is given the legal authority over the minor’s money, and typically distributes a specified amount to the guardian of the person at regular intervals. Unusual expenses are often paid directly by the guardian of the estate. For example, the guardian of the estate might distribute a few thousand dollars each month to the guardian of the person for the minor’s day-to-day needs but might send a check directly to a summer camp the minor attends, or directly to an orthodontist for the minor’s braces.
When the minor turns 18, the guardian files a final accounting and a petition to terminate the guardianship, and the court terminates the guardianship.
What is a conservatorship?
A conservatorship is a probate court proceeding in which a person is given legal authority over the personal or financial affairs of an adult (who is called the “conservatee”). The key distinction between a guardianship and a conservatorship is that a guardianship applies to a minor and a conservatorship to an adult; otherwise they are very similar.
As in a guardianship, a conservator can be appointed for the person or the estate. The conservator of the person has authority over the conservatee’s personal affairs, and the conservator of the estate has authority over the conservatee’s finances.
In general, the conservator of an estate has a more significant role than a guardian of the estate because adults generally have more money than minors. However, if the conservatee has a living trust, the conservator of the estate does not have authority over assets in the trust. In such cases, the successor trustee of the trust rather than the conservator of the estate has control the conservatee’s trust assets.
What does a conservator do?
Like a guardian, a conservator must take control of the conservatee’s non-trust assets and make regular accountings to the court. Typically, an accounting is due in the first year of a conservatorship and every two years thereafter.
Many conservatorships are filed because the conservatee’s children are concerned that their mother or father may be personally or financially vulnerable. It could be that an elder is living alone but is unable to care for themselves, that a child is taking advantage of a parent who can no longer manage personal finances, or that a parent has fallen victim to an elder abuse scam.
If you have a minor child or an ailing parent who could need a guardianship or conservatorship, please feel free to call us for a free consultation.