The terms conservator and guardian vary in their usage from state to state. In California, they have specific and different meanings. Let’s explore them.
A “conservator of the person” is the individual who makes general welfare, health care, educational, and life-style decisions for an incapacitated adult. An adult may become incapacitated due to dementia, disease, or disorder.
Examples of decisions would be where someone lives and what medical treatment he or she receives.
In contrast, a “conservator of the estate” is the person who is in charge of an incapacitated person’s finances; managing, investing, and distributing assets on behalf of that incapacitated individual.
Examples of decisions would be how assets are invested and what expenses are authorized.
The conservator of the person and the conservator of the estate may or may not be the same person. Whether the same or different people are appointed is up to the person who does comprehensive estate planning. In the alternative, there is no estate plan in place, the court will appoint the conservator as it deems appropriate.
To maintain control, choose who helps you if you need it, and keep the court out of your business, you must do disability planning.
It’s important for each adult to have a general durable (i.e. financial) power of attorney, health care power of attorney, advance health care directive, and HIPAA release.
In addition, many adults also benefit from having a fully funded revocable living trust. A comprehensive living trust-based estate plan may, in fact, negate the need for a conservator of the estate and conservator of the person.
Parents of minor children also must have a stand-by guardian designations to name guardians for their children in case they are alive but are incapacitated and unable to care for them. Guardians named in their wills are also imperative.
The will only applies if the parent is dead; the stand-by guardian designation applies if the parent is alive, but is incapacitated.
To make sure you have full incapacity planning in place for yourself and to choose who is your conservator, if needed, and also the guardian of your minor child’s person and guardian of your minor child’s estate, consult with an experienced and qualified estate planning attorney.
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