Understanding the Differences Between Guardianships and Conservatorships

AdobeStock_247257412-300x200It’s not surprising that people are often confused by the terms “guardianship” and “conservatorship.” Usage of these terms varies from state to state, and multiple levels can apply in either case.

We hope this quick overview will help set the record straight about when and how these terms apply according to Connecticut law.

To get started, let’s take a high-level look at the different kinds of guardianship and conservatorship that are possible depending on the specific situation.

Guardianship

  • Guardianship of a Minor

This first usage of the term guardianship refers to the responsibility and legal authority parents have to care for and make decisions about their child’s general welfare, health, and care. If a child’s parents pass away while that child is still a minor, someone else will step in as guardian and assume parental responsibilities until the child is eighteen. (This is the guardian of the person.)  Optimally, the parents named a guardian as part of their estate planning.

  • Guardianship of an Estate

If a minor has assets in excess of $10,000—perhaps by way of an inheritance—their guardian does not automatically have the legal authority to access or manage them; the probate court must appoint a guardian of the estate. The probate court may name the guardian of the person or a third party.

  • Guardianship of a Person with an Intellectual Disability

When someone has an intellectual disability (defined as an IQ of 69 or below), they may lack the ability to make personal and financial decisions when they turn eighteen. Consequently, a parent AdobeStock_267918758-300x200(or advocate) may petition their local probate court for guardianship. (You can find the related forms and documents on the Connecticut Probate Courts website.)

This type of guardian has the legal authority to make decisions on behalf of the person with an intellectual disability—providing support in daily life, healthcare management, and long-term planning.

  • Plenary versus Limited Guardianship

Depending on a probate judge’s assessment of the situation, they may name one of two types of guardians:

    • A Plenary Guardian is necessary in cases where the individual requires comprehensive support. A plenary guardian is legally authorized to make decisions about routine healthcare, living arrangements, educational opportunities, employment, critical medical care (such as surgery), and access to various supports and services.
    • A Limited Guardian, has legal authority in a specifically named subset of areas. For instance, a limited guardianship might allow the guardian to make decisions about residency and education, but not about medical procedures. This arrangement allows the individual with the intellectual disability to retain some independence while ensuring their safety.

In either a plenary or limited guardianship, there will be an evaluation (performed by the Department of Developmental Services or DDS), after which the probate judge will issue written order that clearly defines the breadth and scope of the guardian’s responsibilities and legal authority.

The guardian must file a report each year updating the court on the well-being of the individual under guardianship. And at least every three years, the probate court will review whether the guardianship should remain in place.

Conservatorship

  • Conservatorship of a Person (IQ of 70 or above)

Conservatorship is very similar to guardianship except that the conserved individual is at least eighteen, has an IQ of 70 or above, and cannot make their own personal decisions.

In these cases, the individual may be at risk of endangering the health or safety of themselves or others. The individual’s inability to make decisions could stem from cognitive impairment, such as dementia.

As with a guardian, a the probate court issues a decree defining the scope of a conservator’s obligations and authority. Typically, a probate court grants a conservator authority to make decisions about housing, general care, comfort and safety, and medical decisions.

  • Conservatorship of Property or of an Estate (IQ of 70 or above OR IQ of 69 or below and assets exceeding $10,000)

A probate court appoints a conservator of  an estate when incapacity jeopardizes a person’s financial security. A conservator of the estate is responsible for asset management and must keep detailed records about how they manage the conserved person’s assets and file a financial report every three years with the probate court.

  • Voluntary or Involuntary Conservatorship

A conservatorship is either voluntary or involuntary. In a voluntary proceeding, an individual files a petition with the probate court to appoint a conservator for themself.

In an involuntary proceeding, a third party—often an adult child or a spouse—files the petition to appoint a conservator, and must provide a physician’s evaluation in support of their argument that the person cannot manage their personal financial affairs.

Get the Best Protection by Engaging an Attorney

Whether you have been named as a guardian or conservator or in the midst of deciding if one is needed for a loved one, each scenario will likely come with its share of questions, concerns, and complexities, (for example, conservator applications can be quite complicated) so it is advisable to seek legal counsel before beginning the process.

Contact us to schedule a consultation with one of our experienced attorneys if you need help navigating your way through a situation involving a guardianship or conservatorship. We’re here to help.

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