The terms “guardianship” and “conservatorship” are often mistakenly used interchangeably to refer to a situation in which one person manages the affairs of another who is unable to. In fact, in Michigan, there are important differences between the two.
Both guardianship and conservatorship are intended to protect the interests of a vulnerable individual. Let’s take a look at how each one works.
Guardianship in Michigan
Guardianship is a legal relationship designed to protect the personal well-being of a person who cannot manage their own affairs because they are legally incapacitated. A guardian makes decisions for an incapacitated person (ward) such as where they will live and what medical care they will receive. In the case of a child, the guardian decides where the ward will go to school and makes other decisions that a parent would make if one were available.
Conservatorship in Michigan
Michigan conservatorships are intended to allow one person, the conservator, to manage the finances of a protected individual. For example, a conservator might handle the protected individual’s assets, pay their bills, buy or sell property on their behalf, invest their money, and in general, ensure the financial stability of someone who is legally incapacitated.
Who is “Legally Incapacitated?”
Below are some situations when a guardianship and conservatorship are needed:
An adult who has developed Alzheimer’s or other dementia, may no longer be able to manage their own affairs. Unless they did incapacity planning and have powers of attorney and advance directives in place, they may need someone else to make decisions on their behalf.
Children, no matter how bright or mature they are, lack the legal ability to make decisions for themselves until they become adults at 18; thus, they are legally incapacitated. Someone with a disability, such as a severe developmental or psychiatric disability, might also be considered legally incapacitated.
Physical disability does not typically render a person legally incapacitated. However, if the person’s physical condition (like a coma or advanced ALS) prevents them from effectively communicating or managing their care or finances, they might be deemed incapacitated by a court and in need of a guardian and/or conservator.
Can the Same Person Serve as Guardian and Conservator?
It’s often the case that a legally incapacitated person might need both a guardian and a conservator. For example, let’s say that an elderly woman who owns a house and car and has several hundred thousand dollars in investments and other assets develops dementia. She might need a guardian to make decisions about her living situation and ensure that she is safe and well cared for in a long-term care facility.
However, she might also need a conservator to manage her assets, since she is no longer able to do so. The conservator might, for instance, sell the house or some assets to pay for her long-term care needs. The conservator would also manage her remaining investments to ensure she has the funds she needs going forward.
In many cases, if a guardian and conservator are needed, the same person, such as an adult child, can serve in both capacities. However, there are times when it makes sense for separate people to serve as guardian and conservator. For instance, the person best suited to serve as guardian might have a conflict of interest that makes them an unwise choice to manage a protected person’s finances. Another scenario involves family members who want to divide the workload involved in managing the protected person’s affairs.
In certain circumstances, the probate court may appoint a professional conservator to handle financial matters for a protected individual to avoid bias or mismanagement, while a family member or friend serves as guardian.
Does a Legally Incapacitated Person Always Need a Conservator?
It is not always necessary to appoint a conservator for a person who needs a guardian. Depending on the situation, a guardian or another party may be able to handle the ward’s finances. This is typically the case when the ward has straightforward regular expenses and few or no financial assets that need to be managed. If the ward’s only income is Social Security, veterans’ benefits, or other government benefits, they may have a representative payee who can ensure the funds are used for their care.
Even if there are significant assets, prior planning can eliminate the need for a conservator. For example, if the woman in our scenario had established a living trust before she became incapacitated, her successor trustee would take over managing the assets in the trust for her benefit with no court
involvement needed. And if she had a properly drafted patient advocate/medical durable power of attorney, then a guardianship would not be necessary as well.
Do All States Treat Guardianship and Conservatorship the Same?
No, which unfortunately can add to the confusion around the terms; guardianship and conservatorship may have somewhat different meanings from state to state. For example, in Florida, a “conservator” is someone who manages financial affairs for someone who cannot do so due to absence (like a military deployment). A guardian manages the personal and financial needs of a legally incapacitated person; in other words, a guardian in Florida might take on the tasks that would fall to both a guardian and conservator in Michigan.
Work with an Experienced Guardianship and Conservatorship Attorney
If you are concerned that a loved one might need to have a guardian and/or conservator appointed, or you want to avoid the need for a guardianship and conservatorship in your future, an experienced estate planning and probate attorney can help.
The knowledgeable attorneys at Barron, Rosenberg, Mayoras & Mayoras work with clients who want to establish or prevent a guardianship or conservatorship Schedule a consultation today by calling (248) 213-9514 in Michigan or (941) 222-2199 in Florida to learn how we can assist you. You can also use our simple online contact form.