Guardianships & Conservatorships: What’s the Difference?

If you’re wondering why “guardianships for adults in Rocklin, California” turns up little results then you’re not alone. Other states have clear definitions of guardianships and conservatorships for adults. But California, being California, changes it up. The difference lies in the age of the person needing protection and the rights that person keeps.

Guardianship vs. Conservatorship in California

The main difference between guardianship and conservatorship is that one is for adults and the other is for minor children. The court can appoint a guardian to protect a minor’s person and estate. (California Probate Code Sec. 1510). The court can appoint a conservator to protect an adult’s person, estate, or both. (California Probate Code Sec. 1800.3).

Guardianship – When is it Used?

Remember when you were in elementary school and your teacher handed out permission slips? He or she would tell you to have the form signed by “your parent or guardian.” A guardian of the person “has the care, custody, and control of, and has charge of the education of, the ward….” (California Probate Code Sec. 2351). If this makes you think about an orphan, you’re on the right track.

Grounds for Guardianship of the Person

In appointing a guardian, the court must always consider the “best interests of the child.” (California Probate Code Sec. 1514California Family Code Sec. 3020). Here are some situations in which the best interests of the child allow the court to grant a guardianship.

Guardianship for Orphans

Although the differences between adoption and guardianship are beyond the scope of this article, one key difference is speed. Adoption of a child may take an incredibly long time, but the court can appoint a temporary guardian in as little as a week – or less with “good cause.” (California Probate Code Sec. 2250). For example, if a recently orphaned child is sent from another county or state to her grandmother, the grandmother can file for temporary guardianship. Then the grandmother can enroll the child in school and get the child medical care.

In one recent scenario a grandchild born with dwarfism was sent from the teenage mother in Canada to the grandparents in California. Using a guardianship, the grandparents were then able to get the child specialized medical care.

Guardianship of Neglected and Abused Children

Another common guardianship situation is preventing child neglect or abuse. If a child is abused or neglected then the grandparent (or other concerned family member or friend) can file for guardianship. This would allow the grandparent (or other person) to get custody and avoid foster care. Our office helped a grandparent win guardianship of her grandchildren. When one father arrived in court to claim custody of his son, the court denied his request. He was unable to show that he didn’t contribute to the neglect nor attempt to prevent the neglect. When the court awarded custody to the grandmother, she then enrolled the grandchildren in school and got the children medical and dental check-ups for the first time.

Stable Living Situation

Using the “best interests of the child” factors, the court can grant a guardianship to a non-parent. The court can award custody to “the person or persons in whose home the child has been living in a wholesome and stable environment….” (California Family Code Sec. 3040). In the neglect scenario above, the grandchildren were sent to the grandmother’s home to stay for many days at a time and almost every weekend. The children had a room, their own beds, and toys for their visits. This helped the court determine that children should go to their grandmother because it was in their best interests.”

Grounds for Guardianship of the Estate

Guardianship of the estate often occurs when a child receives a large inheritance. Often the beneficiary of an insurance claim, a child may need a guardian of the estate to manage the proceeds before the insurance company will issue a check. The court will consider the child’s best interests, which include the proposed guardian’s ability to manage the child’s estate. (California Probate Code Sec. 1514).

End of the Guardianship

As I’ve mentioned, the guardianship is for minors. Therefore, the guardianship ends once the child turns 18 (typically). A guardianship will also end if the child gets married, but in my practice I have never seen this happen.

Conservatorship – When is it Used?

A conservatorship is usually used for an adult who has not created an estate plan, has not nominated an agent for finance or health, and is losing the capacity to take care of themselves physically or financially. Conservatorships may also be used for “absentees” (in missing status by a federal agency or the armed forces) or “missing persons” (everyone else not an absentee), both of which are beyond the scope of this article.

Grounds for Conservatorship of the Person, Estate, or Both

Conservatorships are appropriate for adults who are “unable to provide properly for his or her personal needs for physical health, food, clothing, or shelter” or “is substantially unable to manage his or her own financial resources or resist fraud or undue influence.” (California Probate Code Sec. 1801). Because conservatorships may last until the death of the adult conservatee, the petition for conservatorship must provide plenty of proof. In a guardianship, the court considers the “best interests of the child” but in a conservatorship the evidence must be “clear and convincing.” (California Probate Code Sec. 1801(e)).

Common Factors for Conservatorship of an Adult

Because the bar of proof is so high, the petitioner usually shows significant evidence that an adult needs help before a court will grant a conservatorship. Typical factors and situations include:

  • Large gifts of money to non-relatives/strangers
  • Getting lost often; wandering
  • Failing to keep the home safe/clean (hoarding)
  • Inappropriately dressing for occasions/weather
  • Repeating stories and events often and as if telling it for the first time
  • Failing to pay bills, causing interruptions in services

It is very important to keep in mind that adults in California are presumed to have capacity. Also, a diagnosis of cognitive impairment does NOT raise a presumption of incapacity. (California Probate Code Sec. 810).

Conservatorships to Avoid Probate

Because adults who have estate plans are protected from conservatorship proceedings their assets are also protected from probate and probate fees. However, a conservator can apply for “substituted judgment” and establish a trust in the adult conservatee’s name to avoid probate. (California Probate Code Sec. 2580). This is typical when the conservatee owns a home and should be considered whenever the conservatee owns assets.

End of the Conservatorship; Transfer to Another State

California law does contemplate that an adult who has lost capacity will regain capacity. Not surprisingly however, a conservatorship typically ends when the adult conservatee passes. Also, a California conservatorship ends if the adult conservatee is moved to another state and that state oversees the adult conservatee.

When are Conservatorships NOT used?

As mentioned, there is a presumption of capacity in California. A viable alternative to conservatorship is convincing the adult person to establish an estate plan. Although many attorneys avoid assisting an adult who has been diagnosed with a cognitive impairment, the capacity needed to create an estate plan is quite low. An experienced attorney should be contacted because estate planning is an option that deserves consideration before petitioning for conservatorship. In fact, the petition for conservatorship asks why estate planning is NOT an option.

An adult who has an estate plan that includes a durable power of attorney for finance and a power of attorney for health care (with or without an advance directive) is usually protected. These documents set the rules for when they are effective – typically when there is no spouse and two physicians agree that the patient is unable to make health care or financial decisions – and what powers the agent(s) will have. Sometimes the documents limit or omit a power that is later needed. In this case, a conservatorship can supplement the agent’s powers. The documents will usually nominate a conservator if one is ever needed (typically the agent).

Adult Conservatorship and Minor Guardianship Attorney

We always suggest exploring the options that avoid court proceedings but sometimes court is unavoidable. Our office has helped many families assist their loved ones with guardianship and conservatorship protection. If you have concerns about a family member or close friend, schedule a free consultation at the Law Office of Edward Burns, PC (916) 282-9799.