A Caregiver’s Guide to Guardianship and Conservatorship

When to consider guardianship?

Guardianship is not intended to be the first step when someone needs help. “Guardianship is usually an arrangement of last resort,” says Mark Johnson, a partner at law firm Johnson Teigen in Fitchburg, Wisconsin, and treasurer for the National Academy of Elder Law Attorneys.

Courts generally consider whether a person has a physical or medical impairment, whether that impairment poses a risk to their health or well-being, and whether less restrictive alternatives, such as a trust or medical power of attorney, could provide the needed support.

Wilson says, “An experienced probate, estate planning or elder law attorney adds a provision in estate planning documents, such as ‘In the event that a court finds it necessary to appoint a guardian or conservator, I nominate my power of attorney to serve as my guardian and/or conservator and ask that they be appointed by the court.’  ”

There are situations where guardianship becomes necessary. This can happen when someone has never created legal documents, when existing documents are too limited, or when a person’s condition could lead them to make decisions that put their health or safety at risk.

“We see this a lot with people with elderly parents who have dementia and can no longer manage and haven’t done anything to protect or provide for themselves,” says Joan Burda, a retired adjunct professor of law at Case Western Reserve University and an attorney who specialized in estate planning and probate. 

In other instances, a court may opt for a limited guardianship, in which a court-appointed guardian manages only health care decisions while the individual maintains control over matters they’re still able to handle on their own.

When is it time to discuss conservatorship?

Establishing trusted individuals to handle a person’s finances rather than leaving those decisions to a court is a vital part of long-term estate planning. John Neil Wood, an attorney and founder of Grant Park Legal Advisors, a Chicago-area firm, says, “I typically recommend that the family discuss who will take on this responsibility, and the level of liability and responsibility they are assuming prior to applying for it.” 

A financial conservatorship involves a court transferring the rights to manage assets, bank accounts and real estate to another person. Because stripping someone of their financial autonomy is a serious legal step, courts must balance protecting vulnerable individuals from financial exploitation with preserving as much of their independence as possible.

For families navigating these decisions, Johnson recommends seeking guidance from an elder law attorney who understands the range of options available. “The goal is not simply to gain control over someone’s affairs,” he says, “but to find the least restrictive arrangement that protects the individual while respecting their rights.”

In families that don’t get along well enough to decide upon a conservator, one person may step up and file a petition and other legal documents with the court. In some instances, there may even be competing petitions, according to attorney Moira S. Laidlaw, former cochair of the Guardianship Committee of the Westchester County Bar Association in New York state. That leaves it up to the judge to decide who gets the job.

Medsger has completed advance directives and medical and financial power of attorney documents to anticipate and prepare for future issues. “All of this planning should avoid the necessity of having my children seek conservatorship over me,” she says.

6 key questions to consider about guardianship and conservatorship

1. What is the process for applying for a guardianship or conservatorship?

The process varies by state, but the petition is often filed in the district or superior court in the county where the care recipient resides. Key forms to submit include a petition or citation form, a capacity declaration completed by the individual’s doctor, and supplemental forms. There is a court filing fee that usually ranges from $250 to $500, depending on the county and state.

2. What are the alternatives to a guardianship and conservatorship?

Most people can avoid ever needing a guardian or conservator if they are prepared. Burda says everyone should make a comprehensive estate plan that includes a durable power of attorney document, which designates someone to make decisions for you if you’re incapacitated.

That way, “if tomorrow I’m in an auto accident and no longer competent to execute legal documents, my spouse has the right to act on my behalf and manage everything,” says Burda. It’s cheaper and faster than going through a complex court proceeding.

3. Who makes sure a guardian or conservator manages a person’s affairs properly?

The court is meant to oversee the situation, but it often lacks the staff to review reports. “That is why there is so much professional and fiduciary abuse,” says Wilson. “Some states require guardians and conservators to take classes to better understand their reporting obligations and handling of money and assets.”

Other states, but not all, require professional guardians and conservators to be certified by a national or state organization.

The court that issued the ruling has the power to take action against a guardian or conservator who doesn’t perform the duties to the court’s satisfaction. For example, a judge can order a conservator to post a bond equal to the value of the person’s estate or whatever amount the court deems appropriate. Someone can be removed for abuses, such as writing checks to cover personal expenses, says Burda.

4. Are there different types of guardianships and conservatorships?   

Yes. For those unable to make decisions for themselves, a court may establish a full guardianship or conservatorship, in which the guardian or conservator essentially assumes control over almost everything, including the ability to sign contracts.

In other instances, a court may decide on a limited role in which the guardian or conservator manages only health care decisions or finances while the individual maintains control over some matters that they’re still able to handle on their own, according to Burda. 

5. What are the limits of being a guardian or conservator?

Being appointed a guardian or conservator does not give someone unlimited control over another person’s life. These roles are designed to provide support and protection while preserving as much independence and decision-making ability as possible. “The goal is not to take away every right someone has,” says Johnson.

6. Can you have multiple guardians or conservators?

Yes. When multiple people are appointed to these roles, they are typically referred to as co-guardians or co-conservators. Usually both co-representatives have equal legal authority to make decisions. In most cases, the guardian and conservator are different individuals.

“Sometimes one family member will be the conservator for financial matters and another member of the family will serve as the conservator for personal issues like health care,” says attorney Chris Melcher, a partner at Walzer, Melcher and Yoda in Woodland Hills, California.