Conservatorship and guardianship ate two terms often used when considering how to help a loved one who has become incapable of caring properly for themselves. There is no uniform federal definition for the two terms. The various states determine how they choose to use each, and who gets described as either a conservator or a guardian. In the process of deciding on guardianship or conservatorship for a loved one, you are probably under some stress. This article seeks to give some clarity and, perhaps help make the decision a bit easier.
What is Guardianship?
In the simplest of terms, guardianship is a legal entity that takes control of an individual's finances, health care, and property. The non-profit Association of Estate Planners and Councils (AEPPC) describes guardianship as: "The power to control a person’s personal affairs, estate, property, and/or assets of the decedent; and custody and control of all assets for the benefit of the person, and is in charge of all personal property of the decedent, except for the property he or she has filed an inventory for." Essentially, it is an arrangement that assigns a third party with the power to act for a person with diminished capacity. This includes the power to manage the person's personal affairs, transfer personal property or manage the person's estate.
What is Conservatorship?
According to the document "Patient Power: Choosing to Protect, Enhance, and Change Who We Become," by Robyn K. Hay, Ph.D., the concept of conservatorship first became known to the public in 1996. It was published in a variety of journals including the New England Journal of Medicine and National Affairs. There are some similarities between conservatorship and guardianship and the two terms are often used interchangeably. The difference between the two is guardianship can be used when a person needs the assistance of another person (such as family members) to help them with a specific task. While a conservator can serve the purpose of protecting someone from themselves.
The Difference Between Guardianship and Conservatorship
Guardianship. In a general sense, a guardian is someone who is appointed to make decisions on behalf of a person who lacks the mental capacity to make their own decisions. In most states, the way in which a conservator is appointed, is by way of a court order. So the amount of control a conservator has is generally decided by the court. Typically, there are restrictions on how the conservator may act regarding the individual they are appointed to take care of. The conservator may be subject to court orders, such as the ability to make important decisions, such as if the individual is to receive medical care or can be given certain privileges.
When to Choose Guardianship or Conservatorship
In the United States, the right to possess life and health are guaranteed to the adult child of the person in question. This means that children can take care of their parents and be awarded power of attorney, which grants them the authority to make decisions on behalf of the parent. The care of the parent, though, comes down to what is best for that individual. For example, you might decide that your mother would be better off under your care than under the guardianship of a state, which could result in additional cost and administration to you as a caregiver. You also have the option of making the choice yourself. In that situation, it is more important that you consider your own wishes.
A Brief History
If you have not seen this before, I will give you a brief history of the two terms. It used to be that a person who became disabled did so primarily by declining or failing to eat, drink, or get adequate sleep. Thus, they became physically incapacitated and unfit to handle their affairs. They became disabled, to the degree that they could not handle their affairs. A long time ago, there were no services available to help the person. They had to go out and do their own research on how to handle their disability. This meant doing some activities, like some shopping and driving. Many people found they could do this with the help of a relative, perhaps a friend, but not always.
Regardless of how a guardian or conservator is chosen, both terms must be determined individually. Because each term has different criteria, the terms and their respective conditions must be considered as closely as possible. This article simply attempts to provide an overview of what the two terms mean, and how to choose which is right for the loved one you are dealing with.
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