You may be familiar with the terms "guardianship" and "conservatorship," but when faced with the decision to select one legal process over the other for a family member or friend you may need advice on which process is best.
What is Guardianship?
Guardianship is the court process of appointing an individual or entity to take over the legal decision-making responsibilities for another when that person is incompetent and does not have advance directives (i.e. Power of Attorney for Health Care or General Durable Power of Attorney). For example, parents may pursue a guardianship to make decisions for their child with Down syndrome. Similarly, the spouse of an individual with dementia may pursue a guardianship, despite the dementia patient's objections.
What is Conservatorship?
Conservatorship is the court process where an individual who is competent voluntarily requests the court to appoint an individual or entity to manage his or her finances. The individual must be at least 18 years old and have the capacity to understand what it means to appoint a conservator. For example, an adult child with an anxiety disorder who feels overwhelmed about investing or a family friend with vision impairment who wants help paying her bills would be candidates for a conservator.
The Pros and Cons of Guardianship
In the scenarios where an individual can no longer make decisions for him or herself, like an adult child with a developmental disability or a spouse with dementia, a guardianship may be necessary. The guardian essentially steps into the shoes of the individual with court-ordered authority to make legally binding decisions. One of the advantages of a guardianship is that it can be customized to the individual's particular needs. Guardianship can be temporary or permanent and it can transfer only certain powers to the guardian keeping powers under the individual's control, that he or she can still manage.
The downsides of guardianship are clear when the individual does not necessarily need a full guardianship. If powers are removed unnecessarily, the individual loses his or her self-determination. Guardianships are also expensive and time consuming. In some circumstances, it may be a better option to explore conservatorship if the individual is competent.
The Pros and Cons of Conservatorship
Because the individual is voluntarily requesting a conservatorship, the court decides whether a conservator is appropriate without requiring a doctor's report like in a permanent guardianship. A commissioner will hold a hearing and ask the individual questions to find out why he or she wants a conservator and if the proposed conservator would be a suitable fiduciary.
In Wisconsin, once appointed by the court, the conservator has all the powers and duties of a guardian of the estate, but the individual may make gifts of his or her income and assets with the approval of the conservator. By giving the conservator the powers of a guardian of the estate the individual is protected. However, the conservator is ordered to act to the extent necessary, that is the least restrictive form of intervention, which gives the individual more freedom.
If the individual feels that the conservatorship is no longer necessary, he or she may petition the court to terminate the conservatorship at any time. However, the court will not terminate the conservatorship if the individual is incompetent.
The main downside of a conservatorship is that it only applies to the individual's finances. In Wisconsin, the conservator cannot make decisions regarding the individual's health care decisions. Therefore, the individual should sign a Power of Attorney for Health Care to appoint an agent to assist with medical decision making, if needed, if he or she cannot make such decisions.
Another concern to keep in mind is whether the individual has the capacity to request a conservatorship in the first place. If there are capacity concerns, then a guardianship of the estate and/or person may be the only option.
Every situation is unique and requires its own specific plan. In some cases, guardianship is necessary because the individual no longer has the capacity to make decisions and he or she did not execute Powers of Attorney for health or finances. In other cases, a limited guardianship or conservatorship may be appropriate if the individual can appropriately make some of his or her own decisions. In summary, it is important to ascertain the individual's capacity and needs and wants before making any decisions on guardianship or conservatorship.