In every state, incapacitated individuals may become wards via court proceedings. Generally, an incapacitated person is unable to adequately care for herself independently. Each state has its own definition of incapacity, and each state sets its own bar for proof of incapacity. Although guardianships and conservatorships have some similarities, they are separate and distinct.
In many states, a petitioner may file an action in probate court for guardianship or conservatorship of an adult. Probate courts are appropriate venues for these types of petitions, as these courts oversee financial matters concerning estates and trusts. Typically, family courts have jurisdiction over guardianships concerning minors. However, some states give family courts, probate courts, juvenile courts -- and even district courts -- jurisdiction over actions for guardianship of minors.
Guardianship of an incapacitated adult differs from a conservatorship in a variety of ways. Guardianships involve appointment of someone -- usually a relative or close friend -- who looks after an incapacitated individual's physical well-being. In other words, a court-appointed guardian makes decisions about an incapacitated individual's safety, health care, living arrangements, clothing and nutrition. For example, a court-appointed guardian may legally place a ward in an assisted living facility, provided the court granted that power.
Conservatorships differ from guardianships in that conservators are financial decision makers for protected individuals. Conservators generally have the authority to make prudent investments, pay bills and contract on behalf of a protected individual. Under conservatorships, protected individuals aren't seen as entirely incompetent. For example, they may be fit to physically care for themselves, get married and vote in elections. Courts generally limit a conservator's authority to financial decision making, and the scope of that financial decision making may be limited.
In some states -- such as Washington -- conservators are known as "guardians of the estate." In these states, traditional guardians are known as "guardians of the person." Guardians of the estate perform the same function as conservators, and they're typically appointed by probate courts. Notification requirements vary by state, but state law typically requires that prospective guardians and conservators notify the ward's closest relatives upon petition for guardianship or conservatorship. Furthermore, state law limits the amount of authority a court may grant a guardian or conservator so the ward's personal freedoms and civil rights remain protected.
- Maine.gov: How a Guardian or Conservator Is Appointed
- Hampshire County Probate and Family Court: Guardianship of Minor Child
- Minnesota Judicial Branch: Guardianship & Conservatorship
- Minnesota Judicial Branch: Conservatorship and Guardianship in Minnesota
- South Dakota Department of Human Services: Guardianship and Conservatorship FAQ's
- Parentgiving: Guardianship Versus Conservatorship –- What Is the Difference?
- The Law Office of Mary Ann Vance, P.S.: Guardianship
Andrine Redsteer's writing on tribal gaming has been published in "The Guardian" and she continues to write about reservation economic development. Redsteer holds a Bachelor of Arts in history from the University of Washington, a Master of Arts in Native American studies from Montana State University and a Juris Doctor from Seattle University School of Law.