When it comes to estate planning, the terms “guardian” and “conservator” tend to come up often. There’s sometimes confusion about what a guardian does as opposed to what a conservator does. The two roles are similar but distinct.
A guardian is a court-appointed fiduciary who is responsible for ensuring that the personal, day-to-day needs of a child or incapacitated adult are taken care of. The person whose well-being the guardian is responsible for is called a “ward”. In the case of a child, often the guardian is the primary caregiver, living with the child and fulfilling a parental role. This is not always the case with an incapacitated adult. The guardian of an incapacitated adult is usually in charge of making sure that the ward gets adequate medical treatment and that the ward’s caregivers are doing an adequate job of meeting his or her personal needs.
A conservator, or guardian of the property, on the other hand, is a court-appointed fiduciary who is responsible for managing the financial affairs of a child or an incapacitated adult. The conservator takes care of real estate, manages bank accounts, and handles investments. His or her duties can range from paying bills to buying and selling stocks and bonds to managing rental property on behalf of the ward.
The main benefit of having a guardian or conservator is that the fiduciary is subject to court oversight in fulfilling his or her duties. The disadvantages to this arrangement include that, because of court involvement, guardianship or conservatorship can be an expensive and time-consuming process, and that it is a public process.
Having a well-made estate plan that includes incapacity planning documents like a Revocable Living Trust, a Living Will, and a Durable Power of Attorney for Healthcare can ensure that you have agents in place to take care of your personal and financial needs without resorting to court intervention if you should become mentally incapacitated.