In California, the term guardianship refers to the care of a minor and the term conservatorship refers to the care of an incapacitated or incompetent adult. Generally speaking, the purpose of a guardianship or conservatorship is to establish the legal authority for an individual to take over the care and support of another. There are many reasons why this type of authority may be necessary. The person in need may be a minor or may be incapacitated in some way that requires the assistance of another to manage their personal affairs. Here is what you need to know about a conservatorship vs. guardianship.
What is a guardianship?
Guardianship is the court process required in order to give someone other than a parent custody and authority over a minor child and his or her property. Appointment of a guardian means filing a petition and seeking approval of the nominated guardian by the court. A guardian can be given control over the child, meaning custody over the child, or the child’s estate or property. A guardian could also be placed in control of both the child and his estate.
What being a legal guardian involves
A legal guardian is an adult to whom the Court gives the authority and responsibility to care for a child and/or to manage the child’s assets in the event neither parent is capable of doing so. A legal guardian can be a relative, friend of the family, or another interested person.
Duties involved in guardianship
If you are appointed as a guardian for a child, you will be required to assume important duties and take on significant obligations. You will also become responsible to the court for all of your actions. It is critical that you clearly understand your duties and responsibilities as guardian. So, if you have any questions, it would be wise to consult with a qualified and experienced attorney.
Are there any alternatives to guardianship?
There are a few alternatives to a formal, court-appointed guardianship. One choice is to establish a private agreement with the parents of a child in order to provide necessary care. Essentially, the written agreement establishes that a particular person has been given custody of a child with the parent’s consent. Additionally, a medical release for emergencies should be executed as well. This type of informal agreement can be revoked by the parents at any time.
California recognizes a Caregiver’s Authorization Affidavit
Another alternative is executing a Caregiver’s Authorization Affidavit, which is recognized by the California Family Code. California law allows a relative of the child to fill out a Caregiver’s Authorization Affidavit to enroll the child in school and secure medical treatment for the child. Much like the informal agreement, the parents may revoke this authority or override any decisions made under this type of agreement at any time.
What is a conservatorship?
A conservatorship is much like a guardianship. It is a court proceeding to appoint someone who is qualified to manage the financial affairs and/or the personal care of an individual. However, with a conservatorship, the person needing care is an adult who is either physically or mentally unable to handle his or her own affairs. Instead of a guardian, the person or organization the court authorizes is known as the “conservator.” A conservator can be a family member, friend or professional person.
The two types of conservatorships available in California
A probate conservatorship in California can be categorized as limited or general. A Limited Probate Conservatorship is appropriate when the conservatee (the person needing assistance) is developmentally disabled. With this type of conservatorship, the authority of the conservator is limited in order for the disabled person to live as independently as possible.
A General Probate Conservatorship, on the other hand, is for all other adults who, due to physical injury, advanced age, dementia, or other conditions, are unable to care for themselves. A General Probate Conservatorship can also be appropriate for someone who may be more susceptible to undue influence.
When will a conservatorship terminate?
A conservatorship of an individual typically terminates when the conservatee passes away or the conservatee regains the ability to handle his or her own personal and/or financial affairs. A conservatorship of the estate will end when the estate runs out of money.
Download FREE estate planning worksheet today! If you have questions regarding guardianships, conservatorships, or any other estate planning needs, please contact the Schomer Law Group for a consultation, either online or by calling us at (310) 337-7696.
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