Good estate planning is about more than designating what will happen after you’re gone. A well-drafted estate plan can and should designate who will make decisions for you if you become incapacitated and unable to speak for yourself. This could happen suddenly — perhaps through a catastrophic accident that leaves you in a coma. It could happen more gradually — perhaps through dementia.
When contemplating to whom you want to entrust your well-being, you likely will hear the terms “guardianship” and “conservatorship.” They’re often used interchangeably. However, they are two different types of legal relationships. Let’s take a look at both.
A guardianship refers to the authority to make personal and health care decisions for someone once they’ve been determined to be incompetent or incapacitated. These can involve overseeing their wishes for end-of-life care that they’ve designated in their advanced directive — or making those decisions on your own if there’s no directive. It can also involve finding a nursing home or other facility where the person can live.
A conservatorship, on the other hand, refers to the authority to handle someone’s finances. This typically involves paying their bills, managing their investments and collecting debts.
A person can choose the same person — perhaps an adult child — to serve as both their guardian and conservator. They can also designate more than one person — sometimes multiple children — to share these responsibilities. However, disputes can ensue if they disagree on how things should be handled.
If you don’t designate a guardian or conservator, a court will appoint someone. If you don’t have children or other family members, that could be someone you don’t know. Fans of John Oliver’s Last Week Tonight may remember a particularly frightening segment from last year on what can happen when court-appointed guardians abuse their positions.
Whether you’re in the process of designating a guardian and/or conservator for yourself or you’re seeking to be appointed to this position for an ailing loved one, it’s essential to understand the roles that both play. An experienced estate planning attorney can provide more information based on your own unique situation.
