Conservators have been in the news lately, with singer Britney Spears pushing back in court against her father’s 13-year conservatorship over her. Many of the people standing outside the courthouse waving “FREE BRITNEY” signs have only a vague idea of what a conservator actually does. In fact, many people are unsure of the role of a conservator vs guardian.
What is the difference between a guardian and a conservator? When does a person need one or the other? If someone needs both a guardian and a conservator, can the same person serve in both roles?
Some people use the terms “guardian” and “conservator” interchangeably, but in fact there is an important distinction between the two.
A conservator is a person appointed by a Michigan probate court to oversee the finances of a person who lacks the legal capacity to make financial decisions and take care of financial transactions. A conservator might pay a protected person’s bills, such as their rent and utilities, manage their investments, and ensure that they are not taken advantage of financially by unscrupulous people.
A guardian is appointed by a Michigan probate court and makes personal decisions for someone who is legally incapacitated and cannot make those decisions. A guardian might decide where the protected person (also called a “ward”) will live, what medical procedures they will have and other personal decisions such as ensuring the ward has appropriate food, clothing, and social opportunities. A guardian should take the ward’s previously-expressed values into account when making these decisions, as well as the ward’s wishes to the extent they are able to communicate them.
How does someone become legally incapacitated? Sometimes incapacity means that a protected person is not a legal adult. An orphaned child under the age of 18, no matter how bright or mature, is not legally permitted to make certain decisions and must have a guardian and conservator.
Adults can become legally incapacitated, too. Sometimes incapacity is the result of a sudden illness, accident, or injury, like a stroke or a car accident that causes severe brain damage. Often, however, incapacity comes on more slowly, as Alzheimer’s or another form of dementia takes hold of an older person. After a lifetime of independence, the older person may resist giving up control of their own decisions. An adult child or other family member may have to petition for guardianship, conservatorship, or both, for the senior’s own protection and well-being.
Both guardians and conservators are fiduciaries, which means that they are obligated to act in the best interests of the protected person, rather than their own.
Frequently, someone who is legally incapacitated will need both a guardian and a conservator. The same limitations that make it impossible for the person to make good personal decisions may make it impossible for them to make sound financial decisions and vice versa. For example, someone with Alzheimer’s disease may need help with both.
That said, not everyone who needs a guardian needs a conservator, and not everyone who needs a conservator needs a guardian. A common scenario is an elderly person who is physically frail, disabled by dementia, and living in a nursing home with only Social Security payments for income. That person would need a guardian to make personal, primarily medical, decisions. But without any finances to manage, a conservator would not be needed.
Conversely, consider a young woman who sustained a brain injury in an accident and received a large financial settlement. If she lives with a family member and can communicate her needs and wishes, she may not need a guardian. But she may lack the cognitive function to manage her substantial assets, and she might need a conservator.
In the event that someone needs the protection of both a guardian and conservator, the probate court can appoint the same person to serve in both roles. But that is not the only option, and they do not have to make that decision. Someone may be in a position to serve in one capacity, but not the other, or family members may want to share the work and responsibility. For example, an older man with Alzheimer’s might live with an adult son, who is well-suited to be his guardian; his daughter, who is an accountant, might be a better choice to act as his conservator.
It is possible that the son and daughter might want to serve as co-guardians and co-conservators. It is possible for that situation to work, but the siblings would both have to agree on every decision, and the arrangement could quickly become cumbersome if they do not work well together. If a decision needs to be made in an emergency, needing to get both co-guardians to sign off on the decision could cause unnecessary delay. As with having co-executors of a will, just because you may be able to have co-conservators or co-guardians doesn’t necessarily mean that you should.
Deciding conservator vs guardian is one decision, but do either have to be a family member? A family member often serves as conservator or guardian but does not have to. Anyone who is 18 or older and willing to serve in the role can be a guardian or conservator. Some family members feel equipped to make personal decisions on behalf of their incapacitated loved ones but may not want the responsibility of managing their finances, especially if they live outside of Michigan. Professional fiduciary services are available, allowing a local attorney or other professional to serve as conservator while a family member acts as guardian.
If you have questions about guardianship and conservatorship that were not answered in this blog post, or need help establishing a guardianship or conservatorship for a loved one, we invite you to contact our law office for a consultation.