Guardianships and Conservatorships Can Help Protect Loved Ones

by Jaburg Wilk

Jaburg Wilk

The decline of a family member’s health can be one of the most difficult emotional challenges that a family will face. If that ailing family member hasn’t adequately planned for such an event, the burden rests on the family to step in and care for them. Without proper legal authority, this can be difficult.   

Fortunately, the court provides a process for obtaining the necessary authority to care for the needs of an ailing family member. There are two different types of authority that can be sought through either individual or combined proceedings: guardianships or conservatorships.  

What is Guardianship?

Guardianship provides authority to make personal decisions on behalf of the ward the person for whom a guardian is appointed. A court-appointed guardian has the power to make decisions on behalf of a ward, similar to a parent over a child; however, the guardian is shielded from certain liabilities on behalf of a ward’s actions. 

A guardianship allows the guardian to: 

  • make provisions for the ward's care; 
  • approve living arrangements, including, if necessary, assisted living facilities; and  
  • consent to medical and professional care for the ward. 

This is a non-exhaustive list of the powers of a guardian. A guardian is also given the general duty and power to maintain and care for a ward’s everyday needs.  

In order to have a guardian appointed, the petitioner must show:

       (a) that the ward is incapacitated,

       (b) the appointment is necessary to care for the ward, and

       (c) there are not less restrictive means of providing for the ward. A satisfactory showing of incapacity must be attested to by a physician, psychologist or registered nurse. For inpatient mental health authority, there are additional requirements. 

Any competent person can be appointed as guardian over a ward. While there is a statutory scheme setting forth priority of appointment, the ultimate goal of the court is to appoint the most appropriate person to care for the needs of the ward. 

What is Conservatorship?

Conservatorship provides authority to manage the financial affairs of the protected person-the person for whom a conservator is appointed. At times the protected person may also be referred to as the ward.  The conservator has the same power to manage the protected person’s estate and affairs as the protected person would have if not under disability, although a conservator doesn’t have the power to make a will or certain gifts. A conservator has a duty to act as a fiduciary and observe the applicable standard of care. In a conservatorship, the conservator is required to account annually to the court regarding the protected person’s estate. The conservator may also be required to post a bond in an amount determined by the value of the protected person’s estate.  

In a conservatorship, the petitioner must show that the person is in need of protection or that the person is unable to effectively manage their finances. Similar to guardianship proceedings, this is done through an appropriate medical or psychological evaluation, a report of which will be submitted to the court. While still substantial, the burden to prove a need for protection is less than the burden to prove incapacity. A person can have capacity and still need a conservatorship.  

Similar to the guardianship proceedings, there is a statutory scheme setting forth priority of appointment, but the ultimate goal remains to appoint the most appropriate person to care for the needs of the protected person.

Who is the Petitioner?

The person seeking the requisite authority to care for the ward and/or protected person-must determine whether both a guardian and conservator is required. Furthermore, the petitioner must determine whether they can meet their burden of proof in seeking such appointment. The petitioner need not be the nominated guardian or conservator, but more often than not, it is usually the same person. The petitioner must also consider the cost and burden in each appointment. To determine the appropriate authority in each individual situation, the petitioner should seek the proper legal advice. 


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Jaburg Wilk | Attorney Advertising

Written by:

Jaburg Wilk

Jaburg Wilk on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.