Guardianship vs. Conservatorship, What’s the Difference?
Anna and her husband Joe live in beautiful North Idaho. Like many of us, their personal values run deeply. This commitment to family includes caring for those they love, like Anna’s adult brother, Ron, who has mental disability. Confusion arose after reading online about different ways to legally be able to make both medical and financial decisions for Ron. The options they saw available were:
A legal relationship established by the court in which a person is given legal authority over another person when he or she is unable to make safe and sound decisions regarding his or her person, or property.
A guardian or a protector is appointed by a judge to manage the financial affairs and/or daily life of someone due to physical or mental limitations, or old age.
To put this another way, a guardianship grants physical control over the ward (person in need of guardianship). This gives the guardian control over things like where the ward lives, what they eat, what they do. A conservatorship gives the conservator control over the finances of the ward.
When seeking a guardianship and/or conservatorship, the court will try to allow the person to maintain as much independence as possible while protecting the ward. For example, if the ward can make daily living decisions, such as proper hygiene and diet, but cannot adequately handle their finances, then the court will appoint just a conservator, but not a guardian.
The People Involved
For care to be effective the paperwork must be done correctly. Both a legal guardianship and a conservatorship are normally facilitated with at least two attorneys. One lawyer represents the proposed guardian or conservator. In the above fact pattern this would be Anna. One lawyer represents the proposed ward, in this case Anna’s disabled brother Ron. The costs for acquiring a legal conservatorship/guardianship runs from $4,000 – $7,000.
Court Appointed Visitor
The court must appoint a “visitor of the court.” The court visitor may be a person with a post-baccalaureate degree, including, but not limited to, a Masters in Social Work (MSW), Masters of Science in Nursing (MSN), Juris Doctorate (JD), and at least two years of relevant experience; or at least two (2) years of relevant experience in the range of guardianship or conservatorship type of cases. The court may determine whether the proposed visitor’s experience is sufficient. (See Idaho Court Administrative Rule 54.4). The visitor visits with the proposed ward and then files a report with the court, the specific details required in the visitor’s report are listed in Idaho Code 15-5-303. After the visitor-of-the-court visits with Anna and Ron (and possibly others) they write a document called a Visitor’s Report. This describes the situation and recommends (or does not recommend) Anna as the proper person to legally care for Ron.
Court Appointed Medical Professionals
The court will normally appoint a physician and a mental health professional, or other person qualified to evaluate the alleged impairment of Ron.
After Being Appointed Guardian/Conservator
Each year after being appointed, the guardian MUST* file an Annual Status Report with the court. This report deals with the living arrangements and other non-financial aspects of the ward.
If Anna is appointed as a conservator, then each year she (the conservator) MUST* file an Inventory of the ward’s assets within ninety (90) days of appointment and then also a Conservator’s Accounting annually with the court. This accounting covers all the financial assets and liabilities of the ward. (Here is a link to a sample Annual Status Report as well as a Conservator’s Accounting)
* In the past, many guardians/conservators failed to file the required annual reports. This resulted in some abuses. The Idaho Supreme Court subsequently stepped in and now has a department down in Boise that reviews all guardianships and conservatorships. If Anna would fail to report in a timely manner, or if there are any issues that cause a concern for the person reviewing the report, then Anna’s local county magistrate court will be notified. The judge will call for a hearing where Anna will have to explain to the judge’s satisfaction the issue that was raised. Most of the time these can be cured with a letter of explanation to the judge without a hearing.
In the next article, I will discuss a Power of Attorney Upon Disability which, in many cases can be used for an aging parent and is much less expensive.
by Tom Bushnell, Attorney at Law, Bushnell Law
Tom Bushnell is an attorney who lives in Bonners Ferry, Idaho with his wife and family. Tom’s life experience working as a logger, landscape contractor and director of a national organization gives him a rich and knowledgeable experience base for practicing law. Providing estate planning, insurance claims and contract law, his warm welcome and reasonable pricing will put you at ease.