By Osborne & Francis
December 5, 2022

What Is the Difference Between Conservatorship and Guardianship?

When a person can no longer communicate, make safe decisions, or becomes susceptible to fraud or undue influence, it may be time to establish a guardianship or a conservatorship. 

Establishing a conservatorship or guardianship can ensure that your loved one’s personal finances and physical health issues are appropriately handled. When a family member can no longer make decisions for themselves or requires someone else to act with legal authority on their behalf, a court may appoint a legal guardian or a conservator. 

A legal guardian can make a wide variety of medical and personal decisions for the person that is in their care. A conservatorship is a bit more limited. In the state of Florida, conservators handle the financial affairs of persons who have been missing for over 1 year and are presumed to be deceased.

Deciding the scope of care is an important consideration in determining if a conservatorship or guardianship is necessary. Some individuals may only need a bit of help managing their finances while others may require assistance with everyday personal care.  

If you are looking for peace of mind when it comes to your loved one’s financial security and physical health, contact the Florida-based law firm, Osborne & Francis, online or by calling (561) 293-2600. Their experienced estate planning and elder care attorneys are standing by to answer your questions. For more information on guardianships and conservatorships in the state of Florida, continue reading.

What Is a Guardianship?

Guardianship refers to the process in which a person is granted legal authority and responsibility over another. Guardianship is a legal role and must be assigned through a court proceeding. A guardian is a person who is appointed by the court to make decisions on the behalf of a protected person. A protected person refers to a person who is in need of guardianship. 

Guardianship may become necessary under a variety of circumstances. Usually, adults have the right to make decisions for themselves and a child’s parents have the legal right to make decisions for their child. Sometimes, this scenario is not possible and a guardian may need to be appointed. An adult may be incapacitated or no longer able to care for themselves and require a guardian. A child may need a court-appointed guardian if their parents are unable to properly care for them. 

An appointed guardian will have authority over an individual’s personal finances, property, and other personal affairs. A guardian may be appointed when: 

  • An individual is suffering from dementia or another form of cognitive disability
  • An individual has a permanent debilitating illness or injury and cannot manage their affairs
  • A child with special needs has recently turned 18 
  • A child is being neglected by their parents
  • A child’s parents unexpectedly become deceased

Guardianship is an important step in estate planning and should not be ignored or saved for later. Some states will even allow you to plan ahead and choose a guardian who can be appointed at a future time as a type of advance directive. Continue reading to learn about different guardianship responsibilities. 

What Does a Guardian Do? 

A court-appointed guardian has many roles. A guardian will make decisions and act relative to a protected person’s care, support, and maintenance. A guardian will make decisions on behalf of their conservatee. A conservator owes their conservatee a fiduciary duty meaning that they must act in the conservatee’s best interest.  

There are different types of guardianship that may be utilized across different situations. 

Here are a few different types of guardianship: 

Guardianship Over a Person 

A guardian of an elderly or incapacitated person will make decisions concerning the protected individual’s care, treatment, education, support, and maintenance. This type of guardianship may refer to the guardianship of a minor or an elderly or incapacitated adult. 

In the case of a minor, the guardian will be required to provide for the minor’s physical and personal needs and will retain custody of the minor until they reach the age of 18. In the case of an incapacitated adult, the guardian will be required to consent to medical treatments on behalf of the protected person, make decisions concerning medical treatments, and make end-of-life preparations. 

Guardianship Over an Estate 

A guardian of an estate will manage another person’s assets including their income, money, or property. A guardian of an estate will usually be utilized when a minor inherits money or other assets. In this type of case, the guardian will have very limited access to any funds that the minor child has inherited. If the guardian wants to utilize any money for the child’s care, they must seek court approval. 

For adults, guardianship of the estate may be used for those who cannot manage their affairs but have enough income or other assets that a guardian needs to be appointed. 

Guardianship Over Person and Estate

In limited cases, a guardian for a minor child or incapacitated adult may be granted both guardianship over the person and the estate. In these situations, the guardian will be responsible for both protecting the person as well as managing their property. 

An appointed guardian does not possess absolute authority over a person’s assets, property, and finances. A guardian is required to seek court approval before spending any of the protected person’s money or utilizing any of their assets. It is also important to note that guardianship is not permanent. Guardianship of a minor will expire when they turn 18. Guardianship of an adult will expire once the adult regains the ability to take care of themself or passes away.

If you would like to discuss different types of guardianships and how they can benefit you and your family call the highly skilled lawyers at Osborne & Francis by calling (561) 293-2600 or contacting them online

What Is a Conservatorship? 

The disappearance of a loved one can quickly become an emotional nightmare. Not knowing what has happened to your family member can be emotionally excruciating and can raise several legal issues that must be addressed. Even though a person has gone missing, they will still have financial and legal affairs that must be managed. In the state of Florida, when a person is missing and presumed to be deceased, the family can petition the court for conservatorship.

In most other states, a conservator is someone who is granted control only over an incapacitated adult's financial decisions. However, the state of Florida takes a slightly different approach. In Florida, a conservator is appointed by the court to manage the affairs of a person considered to be an “absentee.” An absentee is an individual who has gone missing and is presumed to be deceased based on surrounding facts and circumstances. 

An individual must be declared an absentee by the courts. Some situations a court would grant absentee status in are: 

  • If there is reason to presume an individual has been killed in war or is a prisoner of war
  • If there is reason to believe an individual was suffering from a mental illness such as dementia or amnesia when they vanished
  • If there is reason to believe that an individual was lost at sea

Any person who would have an interest in the absentee’s property or estate may be named conservator. This will usually include a spouse, a parent, an adult child, a sibling, or another relative. If you are interested in learning more about the structure of Florida’s conservatorships or know of someone that may benefit from one, reach out to the attorneys at Osborne & Francis. They can be reached online or by phone at (561) 293-2600 and will be able to help you navigate this complicated process.

What Does a Conservator Do? 

Under Florida law, a conservator has most of the same powers and duties that a guardian possesses. The difference in Florida is that guardians are appointed to manage the affairs of an incapacitated person while a conservator is appointed to manage the financial affairs of absentees. 

Once appointed, the conservator has the right to:

  • Collect the absentee’s income
  • Manage the absentee’s income 
  • Sell the absentee’s property

If you have a family member or a loved one who has gone missing, it is crucial that you meet with a knowledgeable attorney as soon as you can. They will be able to help you navigate the complex legal process of appointing a conservator and provide you peace of mind. 

Contact An Experienced Estate Planning Attorney    

No matter the situation, the appointment of a guardian or a conservator is something that must be done by the courts. State and city laws will impact conservatorships and guardianships so consulting an attorney who is familiar with your state’s specific laws is the best course of action. 

An estate planning lawyer may also be able to help you navigate medical malpractice lawsuits and insurance disputes if they arise. 

The lawyers at Osborne & Francis have experience with both conservatorships and guardianships and can be a valuable resource for you and your family. Contact them online or by calling (561) 293-2600 to begin the estate planning process today. 

Alfred

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