Guardianship and Conservatorship: Frequently Asked Questions

guardianship and conservatorship

We find that clients sometimes have questions about guardianship and conservatorship. With this in mind, we will provide some clarity in this post, and this is an important elder law matter.

What Is Child Guardianship? has been conducting annual surveys to keep track of the estate planning preparedness of American adults. In 2022, two-thirds of respondents did not have estate plans in place. As you might expect, younger people are less prepared than their older counterparts.

At the same time, the lack of preparedness among people 55 and older is quite surprising in a not-so-good way. Only 45 percent of people in this age group have wills or trusts, and this is actually three percent lower than the 2020 figure.

With regard to younger adults, a lot of people think that it is not necessary because of life expectancy. Yes, the life expectancy is about 78 years for people of all ages. At the same time, you never know what may lie around the next twist in the road, and people pass away before their time.

If you are a young adult with limited resources, and you do not have anyone relying on you, estate planning may not be a priority. However, as soon as you have children, it becomes an absolute must, and it starts with a guardianship designation. This is the person that would care for your children if the unthinkable was to take place.

As long as the court determines that the individual designated is capable of serving the best interests of the children, your choice would be honored. You name a guardian for minor children in a simple will.

What Is Conservatorship?

As elder law attorneys, we assist clients that are concerned about the legal and financial ramifications of the eventualities of aging. Alzheimer’s disease is an important consideration when you are evaluating possibilities in the future. It strikes over 30 percent of people that are 85 years of age and older, and it is not the only cause of cognitive impairment.

If you do nothing to prepare for the possibility of incapacity late in your life, the state can be petitioned to appoint a conservator to act on your behalf. Simply put, this is a guardianship for an adult.

There are two different types of conservatorship: conservator of the person, and a conservator of the estate. With the former, the person that is chosen as a conservator will supervise the personal needs of the individual in question. The conservator of the estate handles the financial affairs, and the same individual could be empowered to assume both roles.

In most cases, when conservatorship is necessary, the court will appoint a family member or a close friend. However, sometimes there are conflicts when family members disagree. Under these circumstances, an interested party may be appointed by the court.

Can You Prevent a Conservatorship?

You can avoid the need for a conservatorship and empower your own hand-picked decision-makers in advance if you include incapacity planning in your broader estate plan. First, there is the matter of medical decision-making.

Your plan should include a living will, which is a document that is used to record your life-support utilization preferences. If you choose to do so, you can add your organ and tissue donation and comfort care medication choices in your living will.

To account for medical decision-making that is not related to life-support, you can add a durable power of attorney for health care. A HIPAA release should be executed as well to give the agent the legal right to access your medical records.

For the financial side of things, you can also execute a durable power of attorney for property. If you have a living trust, you can name a disability trustee when you create the trust declaration.

We Are Here to Help!

Action is required if you are going through life without an estate plan that includes an incapacity component. You can schedule a consultation at our Westport or Glastonbury, CT estate planning offices if you call us that 860-548-1000, and you can use our contact form to send us a message.

Barry D. Horowitz, Estate Planning Attorney
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