Guardianships And Conservatorships
Guardianships and conservatorships are very useful structures in estate planning, but many people do not consider the importance of designating specific guardians and conservators until there is an emergency situation.
At McCoy Fatula, APC, in Roseville, we help people throughout the Sacramento area and across the nation give appropriate attention to designating responsible individuals to take on these roles in their estate plans. We can build a durable estate plan for you, coupled with a lifetime of legal support.
Consider what may happen if you do not designate a guardian and conservator:
- Who would manage your financial affairs and health care needs if you become unable to do either for yourself?
- If your minor or disabled child was to lose both parents, who would manage your child’s affairs or care for him or her?
- Do you currently care for elderly or disabled relatives? If something happened to you that prevented you from continuing this care, what would happen to them?
Designating guardians and conservators ahead of these potential situations offers the best solution. You can designate trusted individuals to both of these positions should you die or become incapacitated:
- A guardian is appointed to provide legal and physical care for a child.
- A conservator of the person is appointed to provide basic needs, including health care, housing, food, etc.
- A conservator of the estate is appointed to manage financial matters and make certain medical decisions for a dependent or yourself.
Conservatorship Differs From Power Of Attorney
With a Power of Attorney, you appoint the Agent who will have the authority to make financial and health care decisions if you become incapacitated, but the position is not court-appointed The Power of Attorney is created before you become incapacitated and often takes effect upon you becoming incapacitated. The Agent is often able to make decisions immediately upon your incapacity.
With a Conservatorship, the Court appoints the Agent who will have the authority to make such decisions. Because it is a Court proceeding, it may take several months to appoint a conservator.
The benefit of conservatorship is that its authority is supported by the power and supervision of the California probate court.
There are two types of conservatorships:
- Conservator of the estate is granted authority to manage and control all financial matters of the estate.
- Conservator of the person is responsible for the care, custody and control of the conservatee, including medical treatment consent.
If a petition for a conservatorship is filed with the probate court, general or limited conservatorship authority may be granted to a financially responsible individual. Petitioning for conservatorship is a complex process requiring medical affidavits and court evaluation of the incapacitated person. If the petition is contested, a trial may be necessary.