Guardians and/or Conservators are court-appointed legal agents over a ward (the person for whom the Guardian or Conservator is being appointed) designed to assist individuals who are deemed incapable of making decisions for themselves. Each state uses different terminology with respect to these legal agents and the authorities and responsibilities the Guardian and/or Conservator undertakes in such appointments. While they share similarities, they serve distinct purposes and involve different responsibilities. In this article, we explore the nuances between Guardianship and Conservatorship, shedding light on their differences and emphasizing the importance for long-term healthcare providers to understand these variances.
*Note here that the language used by each state to specify the title of the Guardian and/or Conservator varies widely. Many states appoint both Guardians and Conservators over incapacitated persons and the scope of such is laid out below. Other states appoint a “Guardian of Person” and separately a “Guardian of Estate” over an individual and still other states appoint “Conservator of Person” and “Conservator of Estate” over the incapacitated person. Generally, however, in each state there are two broad categories of authorities and responsibilities that can be given to an individual from the Court: a) over the person and b) over the estate.
Understanding Guardianship:
Guardianship primarily pertains to decision-making related to personal matters such as healthcare, living arrangements, and general welfare. When an individual is unable to make these decisions independently due to incapacity or disability, a Guardian is appointed by the court to act on their behalf. The Guardian’s role is to advocate for the best interests of the ward and ensure their well-being in all personal matters. The Guardian will be able to make decisions regarding placement of the ward in a healthcare facility and end-of-life decisions. Each state will have a statute that delineates the scope of the authority granted to a Guardian. It is helpful to review the statutory language in your state to become familiar with the scope of the authority given to a Guardian and the limitations on such authority as well.
Exploring Conservatorship:
In contrast, Conservatorship focuses on managing the financial affairs and assets of an individual who is unable to do so independently. A Conservator, appointed by the court, assumes responsibility for handling the ward’s finances, applying for government benefits, surrendering life insurance policies, paying bills, managing investments, and making other financial decisions on the ward’s behalf. The Conservator must act prudently and in the ward’s best financial interests at all times. In most states, the Conservator will be obligated to furnish to the court an inventory of the ward’s assets. Additionally, if the Conservator wishes to take certain actions, such as selling the ward’s real property, the Conservator will be required to seek permission from the Court in advance.
The Legal Process
In most cases, there is some evidentiary threshold required to prove to the Court that the adult lacks capacity. Typically this is done through a physician statement attesting to the medical conditions and/or circumstances facing the ward and will include the physician’s medical opinion as to whether a Guardian and/or Conservator is required. States vary in the form and attestation requirements, but typically this is prepared by the resident’s treating physician. Note too, however, that there are provisions in some states that allow for an individual with capacity to voluntarily seek the appointment of a Guardian or Conservator. Usually the court will require some explanation as to the purpose of seeking the appointment of a Guardian or Conservator over an individual who still retains capacity. The court (usually the local Probate Court), will set a hearing and there are usually requirements that the next-of-kin be afforded notice of the hearing. In advance of the hearing, many courts will appoint a Guardian ad Litem. The Guardian ad Litem will typically conduct an investigation of the circumstances facing the ward, and present his or her findings to the court. In a contested Guardianship or Conservatorship matter, this can become very important. At the hearing, the court will hear evidence pertaining to the circumstances facing the ward and will make a decision as to the individual best suited to be appointed as the Guardian and/or Conservator over the ward. Once the Court acts to appoint a Guardian and/or Conservator, the Court will issue an Order and Letters of Guardianship (or Conservatorship). This will be the legal document that gives an individual his or her authority to act as Guardian or Conservator.
A common question facing skilled nursing facilities will be: who should be appointed as the Guardian or Conservator? On this point, many different factors come into play including first and foremost, whether the resident has family or next-of-kin who play a role in the resident’s care needs and whether such person can be trusted to act in the resident’s best interests (and want to serve in this role as well). Another consideration is whether the state provides access to Guardian or Conservator services for indigent persons and/or has a program under which the Court is able to appoint a third-party (a professional fiduciary) over the resident. We frequently assist providers in evaluating who is the proper individual to ask the Court to appoint as Guardian or Conservator over a resident and are familiar with the state’s Guardianship agencies and other professionals that can provide Guardianship or Conservatorship services. In some cases, it may make sense to ask that a family member be appointed. Once the Conservator has accomplished the financial goals of the resident, the court may be able to terminate that appointment leaving only the Guardian in place (this can be helpful where the ward’s assets are limited).
Long-term healthcare providers play a crucial role in the lives of individuals under Guardianship or Conservatorship. Understanding the differences between these arrangements is essential for providing appropriate care and support. For instance, knowing whether a patient’s Guardian has authority over healthcare decisions can help healthcare providers ensure that treatment plans align with the ward’s best interests and preferences.
In navigating the complexities of decision-making for individuals unable to advocate for themselves, understanding the distinctions between Guardianship and Conservatorship is essential, as is knowing how to initiate such a process. Long-term healthcare providers must grasp these differences to provide tailored care and support that respects the legal frameworks governing decision-making on behalf of vulnerable individuals.
Author: Senior Associate, Katie Van Lake
