What’s the Difference Between a Guardian and a Conservator?

When someone is unable to make their own decisions and take care of their own needs, they may need a responsible adult to step into the role of decision-maker. If the incapacitated person is an adult who has valid durable powers of attorney in place, the agent(s) they have named in those documents can assume the responsibility. If not, a guardian or conservator, or perhaps both, may need to be appointed.

The words “guardian” and “conservator” are sometimes confused. While they are related terms, they are not quite interchangeable. Here’s what you need to know about the difference between guardianship and conservatorship in Michigan.

Who Might Need a Guardian or Conservator?

Any person who is legally incapacitated and cannot manage their own affairs may need a guardian or conservator–someone with the legal authority to do so. That might include:

• An older person with Alzheimer’s or other dementia
• A minor child who has lost their parents
• A young person with cognitive disabilities who still needs their parent to manage their affairs after they reach the legal age of adulthood
• An adult who has suffered a serious traumatic brain injury

In some cases, a guardianship or conservatorship may be for a limited period, until the legal incapacity no longer exists—such as when a minor child reaches legal adulthood. Often, however, the need for the guardian or conservator is ongoing, such as for the remainder of the life of a person with dementia. Both guardianship and conservatorship proceedings take place in the probate court for the county in which an incapacitated person resides.

When someone is made a guardian or conservator over a vulnerable person, they assume, at least in part, that person’s ability to make important decisions for themselves. For this reason, probate courts do not grant guardianships or conservatorships lightly. A court may also limit the power of a guardian or conservator to that which is necessary for the incapacitated person’s protection.

What Does a Guardian Do?

A guardian makes decisions regarding the personal well-being and care of a legally incapacitated person, who is called the “legally incapacitated person” or “ward.” A full guardian is responsible for the care, custody, and supervision of the ward. The guardian might make decisions about where their ward will live, what doctors the ward will see, and what medical care they might receive. The guardian is responsible for making sure the ward has appropriate food and clothing, and that the ward’s property is secure (to the extent that there is not a conservator overseeing property and finances). 

As mentioned above, guardianship is not necessarily an all-or-nothing proposition. A ward may need some help from a guardian, but there may be some aspects of their care that they can manage on their own. In that case, a partial or limited guardianship might be put in place. The purpose of guardianship is to protect a ward from harm, not completely strip them of autonomy. Even in a full guardianship situation, the guardian must still consult with the ward about their wishes if possible, and take those preferences into account in making decisions on the ward’s behalf.

What Does a Conservator Do?

Where a guardian is responsible for a vulnerable person’s personal well-being, a conservator is responsible for overseeing an individual’s financial affairs. Conservatorships are especially common in cases where an older individual with dementia can no longer responsibly manage their finances; they may be forgetting to pay essential bills, for instance, or falling prey to financial exploitation. A person subject to a conservatorship is also referred to as a “protected individual.”

Some of the things a conservator might do for a protected individual include paying their bills, collecting and managing any income they receive, doing their banking and handling other financial transactions, and managing any property or investments they may have. Some financial transactions, such as making substantial gifts or buying or selling real estate, may require advance approval by the probate court.

Conservators are required to make an inventory of the protected individual’s assets and file it with the court within 56 days of appointment. The conservator must also provide a copy to the protected individuals and others as the law may require. The conservator must also file reports on the estate of the protected individual on an annual basis for the duration of the conservatorship.

Obviously, a conservatorship is a position of trust, and the conservator’s duty of loyalty to the protected individual means that they cannot use any of the protected person’s assets for their own benefit. That means, obviously, not embezzling funds, but also things like not investing the protected person’s funds in a business owned by the conservator.

Can the Same Person Serve as Both Guardian and Conservator?

It’s common for a vulnerable person to need both a guardian and conservator, and it is also common for the same person to serve in both roles—such as where an adult child needs to manage the needs of an elderly parent with Alzheimer’s.

Guardians may handle some minor financial matters for an incapacitated individual, but larger transactions are the responsibility of a conservator. In situations where the vulnerable person has a large or complex estate, or where a family member does not have the time or ability to manage their finances, a family member may act as guardian while a professional such as an attorney serves as conservator. If family members disagree over who should serve as conservator, using a professional conservator may be a way to avoid conflict.

Avoiding the Need for Guardianship and Conservatorship

Guardianship and conservatorship are sometimes referred to as “lifetime probate” because they require the involvement of the probate court in a person’s affairs while they are still alive. Lifetime probate is sometimes necessary to protect a vulnerable person when there are no other measures in place, but it is easier to avoid lifetime probate in the first place by putting an incapacity plan into place. 

An estate planning and elder law attorney can help you make a comprehensive estate plan that includes powers of attorney and other documents that avoid the need for guardianship and conservatorship. To make a plan for yourself, or to discuss guardianship or conservatorship for a loved one who needs help, contact Estate Planning & Elder Law Services to schedule a consultation.