Difference Between Guardianship & Conservatorship in California

In California the Probate Courts handle both the process of Guardianship and Conservatorship. The process is essentially pretty similar with one main difference. Both processes at the court entail a Petitioner asking the court to make an order that gives them control of another person. These powers can be for the ability to make decisions for the person alone, of their “estate” (finances, personal and or real property of both persona and the estate. The easiest way to differentiate the two is the age of the person needing to be controlled. Guardianships are court proceedings where the proposed Guardian is asking for a court order over a minor child (18 years of age and younger) while a Conservatorship is for someone over the age of 18.

The Guardianship and Conservatorship process in the California courts procedurally are similar. They both start with a Petition asking the court to grant power over the person in question. They both have a court hearing, a court investigation and required notifications to relatives and interested parties before the Judge will grant the Petition, make an Order, and then grant the Petitioner Letters.

Guardianship of the Person is common when minor children need someone to have permission to care for them. Absent or deceased parents and sometimes California Social Services will trigger this process to make sure the child is cared for. Social Services may often recommend this option to family members of a child to avoid foster care placement as they would rather them be with family than the system.

Guardianship of the Estate is not as common, but typical in situations where the minor child has some asset and the co will need to allow someone else to manage it. Common instances of this would be if one parent dies and had the minor child listed as a beneficiary on life insurance. The life insurance company cannot distribute an asset to the minor child, so they require someone be awarded Guardianship of the estate to take control of funds. It seems unusual that these companies would require the surviving parent to have a court order, but it is for the protection of the value of the asset until the minor child reaches age of majority and can take control of that asset. In cases like these, the Judge will often place all funds into a blocked account and require yearly financial updates and status reports of the account until the child is 18.

Conservatorship of the person alone is common in situations where a disable or developmentally disabled child is about to turn 18. Once they are 18 they are considered an adult regardless of their ability to care for themselves. Parents are sometimes surprised when visiting the same care provider and then told they no longer have ability to make decisions about care and treatment based on privacy laws. While many physicians try to accommodate, it is a gray area but essentially can many times be against the law. Conservatorship of the person grants orders for the parents to be able to continue to care for their child that is now an adult.

Conservatorship of the Estate is common when perhaps a parent is aging and suffering from dementia or other similar medical problems. They become unable to properly make decisions and maintain their finances. This type of conservatorship grants powers to conservators to be able to manage and maintain the assets of someone who cannot. With Probate cases that involve estates the court will always require formal court appraisals of the estate as well as yearly accountings and reviews. This is to ensure that the assets of the conservatee are managed and maintained properly.

While this is a top level look, each guardianship or conservatorship case can be different and have special circumstances. Since these processes are very serious to the court and they are tasked with the best interests of the person in question, the court does not grant Letters on a whim. They make sure that it is the best placement and that there are no red flags or potential hazards to the persons health, well being or finances. Before starting a guardianship or conservatorship in California, consulting with either a Guardianship Attorney or Conservatorship Attorney can help give you a clear idea of the process as it is specific to your situation. While both these types of cases are handled in Probate Court, Family Law attorneys often handle these types of cases. The second most common type of attorney that handles guardianship or conservatorships are Probate Attorneys.

About the Author:

Joel Smith