The terms guardianship and conservatorship may be used when families begin looking for solutions to help care for an elderly loved one who can no longer properly care for themselves. The terms have often been used interchangeably, but in elder law, there is a difference between them. First, to define the terms:
Guardianship: The court process of appointing a person to make personal and health care decisions for a minor or incapacitated person.
Conservatorship: The court process of appointing a person to manage the finances of a person who is unable to do so for reasons such as mental illness, being under the age of 18 or having a physical disability.
An “incapacitated” individual who is unable to make decisions about their health and safety may require a court-appointed guardian. An inability to manage financial resources may require the appointment of a conservator.
A guardianship is considered the more intrusive of the two processes, as under a guardianship, a protected person will lose more rights, including the right to decide where they should live, what medical treatment they wish to have and more.
But what defines the term ‘incapacitated?’ In Oregon, the definition normally used is:
“A condition in which a person’s ability to receive and evaluate information effectively or communicate decisions is impaired to such an extent that the person presently lacks the capacity to meet the essential requirement for the person’s physical health or safety.”
There are several estate planning tools that can be used to avoid guardianship or conservatorship. These include creating a living trust or a durable power of attorney to manage property in the event of incapacitation, as well as the appointment of an Agent should you no longer be able to make decisions on your own.
By taking steps now, you and your loved ones can avoid the legal processes of guardianship and conservatorship in later years.
Guardianship and Conservatorship
