By Jesse Maier, Attorney, SW&L Attorneys
When a family member or friend can no longer manage their personal or financial affairs, the courts can step in through guardianships and conservatorships. While these terms are often used interchangeably, they address different needs, and understanding which tool is right (or whether you need both) is key to protecting a vulnerable adult.
1. Why Consider Courtappointed Protection?
- Cognitive decline (e.g., dementia)
- Mental health crises or substance dependencies
- Physical or traumatic brain injuries
- Recent instances of financial exploitation
In every case, the core question is: Can this person still make sound decisions about their health, living situation, or finances? If not, a trusted guardian or conservator can be appointed to act in their best interests.
2. Guardianships: Care of the Person
A guardian of the person has authority over:
- Health-care decisions
- Choice of residence and personal care
- Daily needs such as dental, medical treatments, and general maintenance
Each state court limits a guardian’s powers; major choices (like relocating someone out of state or certain medical procedures) often require prior court approval. In every action, the guardian must prioritize the ward’s (the person to be protected by the guardianship) well-being and expressed wishes.
3. Conservatorships: Care of the Estate
A conservator of the estate (or simply “conservator”) manages the protected person’s financial and legal affairs:
- Collecting income and benefits
- Paying bills, taxes, and debts
Investing, preserving, or selling assets when necessary
Courts generally grant conservators unilateral decision-making power over the estate—again, always requiring that decisions serve the protected person’s best interests
4. One Person, Two Roles (or Two People, Two Roles)
- Combined role: Often, one individual or institution serves both as guardian and conservator. Choice of residence and personal care.
- Separate roles: Families sometimes select different people for each role—perhaps a medical-savvy sibling as guardian and a financially experienced niece as conservator.
If conflicts arise (e.g., whether to spend estate funds on a move to assisted living), the court resolves them by considering what best serves the individual’s health, safety, and financial security.
5. Which Do You Need—and When?
When considering which protection your loved one needs, ask yourself, “What is this person struggling with?”
- Both guardian and conservator: When a person struggles equally with health-care choices and money management (e.g. Alzheimer’s plus complex assets).
- Only Guardian: If someone needs help with daily living or medical decisions but remains financially competent or does not need assistance with financial decisions due to the relative simplicity of the financial situation (e.g. no need to apply for federal, state, local benefits or a small estate).
- Only Conservator: If someone can care for themselves personally, but cannot oversee investments, pay taxes, guard against financial scams or rectify and protect against exploitation.
6. Next Steps
- Assess needs objectively. Talk with family, doctors, or social workers first. Is there a real need for help here?
- Consult an attorney. Talk with an attorney about whether this is the right situation for a guardianship, conservatorship, or both. The attorney will be able to assist in answering the questions of “Is this a guardianship/ conservatorship appropriate to fix the issue?” and “Are you the correct person to serve as guardian or conservator?”
- Consider alternatives. In addition to the above, the attorney can also help point you in the right direction if there is a better route to go than a guardianship and conservatorship (e.g. power of attorney, representative payee, limited guardianship or conservatorship).
As a guardianship/conservatorship attorney, I am dedicated to advocating for individuals in need of help to ensure their safety and stability. Call me today at SW&L Attorneys.
SW&L Attorneys
4627 44th Ave S, Ste 108, Fargo, ND
701-297-2890
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