Guardianship Vs. Conservatorship: What’s The Difference?

Apr 29, 2024 | Estate Planning

A scenario for your consideration: Your mother has dementia, and she can no longer live alone. You want what’s best for her, so you want to become legally responsible for her wellbeing in order to make the best possible decisions on her behalf. But for what position are you applying? Already, in the beginning of the process, you don’t know whether you are trying to become her guardian or her conservator.

Many people do not know the difference between guardianship and conservatorship, or they assume that these are different words for the same thing. Confusion over these terms often stems from the fact that their meanings vary from state to state. If you are in Florida, Elder Law, P.A. is here to break down the legal definitions of guardianship and conservatorship, how they are applied, and their particular roles and responsibilities.

What Is Guardianship?

Florida law defines guardianship as “the process designed to protect and exercise the legal rights of individuals whose functional limitations prevent them from being able to make their own decisions.” Guardianships help protect people of all ages; guardians can be assigned for minor children, adults with disabilities, and elders who are experiencing incapacity or cognitive decline.

Guardians are responsible for making important decisions on behalf of people who can’t make them for themselves. The responsibilities of guardians can include financial management, such as paying bills and taxes, making medical decisions, sometimes with the help of an advanced directive, and ensuring that benefits like Medicaid are being properly managed.

Guardians are not always empowered to make all of these decisions; there are situations in which a guardian might have power only in one sphere, such as making financial decisions.

Types Of Guardianship

There are multiple types of guardianship that can apply based on the specific needs of the individual. When deciding on a guardian, there are two basic types:

  • Voluntary guardianship: Guardianship in which a person is mentally competent but recognizes that they need help managing their estate.
  • Involuntary guardianship: Guardianship in which a person who is not mentally competent is assigned a guardian in order to help them manage their estate, health decisions, or other affairs.

Depending on the needs of the of the individual, the court might appoint a guardian for a variety of purposes, including:

  • Guardian of the person: The guardian in this case cares for the physical needs of the ward. Their responsibilities might include making medical decisions, deciding on the ward’s residence, managing any lawsuits, and other similar factors.
  • Guardian of the estate: If a person is a guardian of the estate for a ward, they are responsible for managing the assets. Their responsibilities might include managing the property of the ward, buying, selling, mortgaging, and donating property, and filing taxes. They are also in charge of making decisions regarding property such as the homestead, money, bank accounts, stocks, and bonds.
  • Guardian of the estate and the property: The guardian of the person and the estate has the responsibilities of both of the categories already discussed.
  • Guardian of a minor: The guardian of a minor is responsible for making parental-adjacent decisions such as housing for the child, where they will go to school, feeding and clothing them, and managing any assets that have been bequeathed to the child.

What Is Conservatorship? 

In Florida, conservatorship is much like guardianship with a few important caveats. First conservatorship only applies to adults, not minor children, as might be the case with guardianship. Second and most saliently, conservatorships in Florida only apply to “absentee” individuals.

A person who is an absentee is someone who has gone missing but is not yet presumed legally dead. Florida statute § 747.01 lists examples of absentee individuals as a person serving with the Armed Forces, Red Cross, or Merchant Marine who has been listed as missing in action, interned in a neutral country, or captured by the enemy.

An absentee might also be a Florida resident who has gone missing in a manner suggesting that they might have died or disappeared as a result of mental illness. If these people own property within the state of Florida or owe debts, they will need a conservator to help settle these issues.

How Do I Become A Guardian Or Conservator?

In order to qualify as a guardian in Florida, you will need to meet these criteria:

  • Be a Florida resident
  • Be 18 years or older
  • Be a family member of the ward by blood, marriage, or adoption

In order to become a guardian, you will first need to file a petition with the help of your attorney. The court will then appoint an attorney to represent the prospective ward before a medical committee, who will examine the prospective ward to determine their level of competence. Up to 30 days after the filing of the petition, a judge will decide if the ward is indeed incapacitated and should be appointed a guardian.

In order to qualify as a conservator in Florida, you will need to meet these criteria:

  • The person you wish to represent legally qualifies as an absentee
  • You have an interest in their estate
  • You are dependent upon them for support and maintenance

In order to become a conservator, you will need to file a petition with the court that includes information on the disappearance of the absentee, why you should be conservator in this situation, and a list of the assets of the absentee and their approximate worth. As with guardianship, your petition will trigger a hearing before the court in which the absentee might be represented by a court-appointed attorney before a judge rules on whether you are needed as a conservator in this instance.

Contact Elder Law For More Information On Guardianship And Conservatorship

The attorneys at Elder Law, P.A., are experienced in all aspects of elder law and estate planning. We endeavor to help families avoid guardianship with comprehensive estate planning whenever possible, but can help with guardianship in situations when it’s necessary. Reach out to schedule a free initial consultation with us and learn how we can help you with all of your elder law issues.

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