I Think I Know Someone Who Needs a Guardianship

One of the questions I get fairly often as a probate attorney goes something along the lines of "Someone I know needs to set up a guardianship." Yet generally, after a bit of discussion I determine that what they are actually talking about is conservatorship, a different legal concept which serves a different purpose.

Here, a few short questions to determine which legal remedy might be appropriate:
1. Is the person who is unable to care for him/herself an adult or a child?

If the person is an adult, you might need a guardianship.

If the person is a teenager with special needs, you might need a guardianship once the person reaches age 18. You may start the application process once you are within a certain date range of the child's 18th birthday.

If the person is a child, go to #2.

2. If the person is a child, are both of the children's parents deceased?

If yes, you might need a guardianship.

If no, are you trying to establish rights and responsibilities of a parent or other relative to the child? If so, you don't need a guardianship, you need conservatorship.

What's the difference between guardianship and conservatorship? An easy way to think of it is that guardianship is a remedy offered in probate court. A probate court enters a family's life when someone dies or an adult becomes unable to manage his/her life and finances. 

The person who is unable to care for himself is called a ward and the person the court appoints to care for him is called a guardian. There are two types of guardianships: guardianship of the person, to manage a person's physical care and make many decisions for them, and guardianship of the estate, to manage a person's finances on their behalf. The 4 common types of wards for whom guardians are appointed include:
- Adults who were previously fully-functioning but now, as a result of age or health, are unable to care for themselves and/or finances;
- Adults with intellectual disabilities, who may or may not have been able to care for themselves previously; 
- Minor children (or, put another way, persons under the legal disability of minority) whose parents have passed away or are themselves incapacitated; and
- Persons who must have a guardian appointed to receive funds due the person from a governmental source.

One important group of adults this doesn't necessarily cover is people with mental illness who can generally care for themselves but, during episodes of illness, are unable to do so. The probate courts address these short-term needs through mental illness court and involuntary commitment during periods when the person is a danger to himself and others. Guardianship is intended to be a long-term solution for indefinite needs instead.

While guardianship is a remedy of the probate courts, conservatorship is a remedy offered in family courts. Family courts address the rights and responsibilities of parents and other family members toward minor children. Family courts enter a family's life not when someone dies or becomes incapacitated, but when a couple divorces or wants to establish or modify parents' rights.

In short, guardianship happens in probate court when a person dies or becomes incapacitated, and is best handled by a probate attorney. Conservatorship is addressed in family court when at least one parent is alive and the parents and other family members want to determine rights and responsibilities to children, and is best handled by a family law attorney.