Our population is aging. According to an article published by the United States Census Bureau entitled “The Graying of America,” “In less than two decades, the graying of America will be inescapable: Older adults are projected to outnumber kids for the first time in U.S. history.”
As our loved ones age, they can develop physical or mental disabilities that may require other parties’ intervention to ensure that their personal affairs are handled responsibly so they can live out their lives comfortably. However, there are legal limitations to what others can do for these individuals.
Guardianships and conservatorships offer others the legal capability to take over specific responsibilities for individuals. Both are aimed at the elderly or individuals over the age of 18 with mental or physical disabilities. Although they are similar, there are some essential key differences between the two. The primary difference is that a guardian will make decisions on behalf of the person, and a conservator will make decisions and manage the person’s finances and estate. In many cases, both the guardian and the conservator will be the same person. If you are not sure if a guardianship or conservatorship is best in your situation, call The Matus Law Group at (732) 785-4453 to speak with an experienced New Jersey guardianship attorney today.
Guardianship
The courts will appoint a guardian for a person who has become incapacitated and can no longer make their own decisions. This will often happen in the case where a loved one has dementia or Alzheimer’s. When a loved one is no longer able to care for themselves, an interested party will file an application and provide medical evidence that they are no longer competent to manage their own affairs.
A guardian will be responsible for acting solely and selflessly in the best interest of the person needing care. They will be responsible for decisions concerning where that person lives, their medical care and treatment, and all other daily matters in the care of that person.
The guardian is usually a spouse but can also be other family members such as a son or daughter or even a trusted family member. There are also cases where court may appoint other individuals or entities, such as lawyers, agencies, or private organizations.
What Are the Disadvantages of Guardianship?
Guardianship can bring several challenges for families of adults with special needs. One significant disadvantage is the loss of freedom. Once guardianship is granted, they may lose the ability to make their own decisions regarding finances, healthcare, and living arrangements. This can be particularly concerning for those who are capable of some level of independence.
Another drawback is the responsibility placed on the guardian. Managing another person’s affairs is a serious commitment. If a guardian mismanages finances or makes poor decisions, they might face legal consequences. It’s crucial to handle all responsibilities with care to avoid potential liabilities.
Guardianship also comes with limitations on the guardian’s authority. The court grants specific powers, such as medical or financial decision-making, but not both unless explicitly requested. This means that guardians cannot control all aspects of the young adult’s life and cannot prevent them from engaging in legal adult activities like drinking or dating.
Finally, guardianship ends with the guardian’s death or a court order. It cannot be transferred to another person automatically. A new guardian must petition the court and undergo the same legal process to gain authority, adding time, cost, and complexity for the family.
These factors require careful consideration to determine whether guardianship is the right choice for the family and the young adult involved. Consulting with a skilled New Jersey guardianship attorney offers guidance tailored to individual needs.
Conservatorship
A conservator acts as a guardian of the estate instead of the person and will manage their financial affairs, assets, and income. A conservatorship is typically set up for an aging family member, but a conservator may also be a friend, a lawyer, an organization, or an agency. A conservatorship does not require that the individual be incapacitated and it can be completely voluntary.
The conservator is responsible for managing a conservatee’s assets, paying for their education, support, and maintenance, paying their debts, and collecting monies that are due them. A conservator will need to file for government benefits for the individual such as Medicaid, Medicare, or Social Security and will be required to prepare regular accountings of all these financial matters. The conservator will be required to participate in the estate planning for the individual but cannot write a will on their behalf.
A guardian and a conservator may be the same person. This is known as plenary guardianship. In the case where the guardian and conservator are different people, the guardian will have the primary control.
If you have more questions regarding guardianships and conservatorships, get the guidance of a skilled elder law attorney in New Jersey. For over two decades, The Matus Law Group has helped New Jersey residents create guardianships and conservatorships for their loved ones. Contact us or call us at (732) 785-4453 to get any of your questions answered.
Difference Between Guardianship and Conservatorship
Guardianship and Conservatorship, while similar, serve different purposes. A guardian, appointed by the court, is responsible for a person who has become incapacitated, often due to conditions like dementia or Alzheimer’s. The guardian makes decisions about the person’s living arrangements, medical care, and daily routines. Guardians are typically spouses or other family members, but can also be other individuals or entities.
On the other hand, a conservator primarily manages the financial affairs of an individual, overseeing their assets, income, and debts. This role does not necessitate that the person under care be incapacitated, and the arrangement can be voluntary. Conservators are responsible for filing for government benefits on behalf of the individual and providing regular financial accountings. Conservators are also involved in the individual’s estate planning, though they cannot write a will for them.
While a guardian and conservator can be the same person—a situation known as plenary guardianship—there can also be distinct individuals serving in these roles. In such cases, the guardian typically has primary control. Understanding these roles is essential for planning for the future of loved ones who may need assistance.
| Aspect | Guardianship | Conservatorship |
|---|---|---|
| Purpose | Appointed for an incapacitated person | Manages financial affairs and assets |
| Decision Making | Makes decisions regarding daily care and living | Manages finances, pays debts, and collects funds |
| Incapacity Requirement | Requires the person to be incapacitated | Can be voluntary, doesn’t require incapacity |
| Decision Scope | Covers daily care, medical treatment, and living | Focuses on financial matters and asset management |
| Responsible Party | Usually a spouse, family member, or trusted person | Can be a friend, lawyer, organization, or agency |
| Government Benefits | May apply for government benefits on behalf of the person | May file for benefits such as Medicaid, Medicare, or Social Security for the individual |
| Accountings | Not required to prepare regular financial accountings | Required to provide regular accountings of financial matters |
| Estate Planning | Cannot write a will on behalf of the individual | Participates in estate planning but cannot draft a will |
Working with an Experienced New Jersey Guardianship Attorney
Understanding the differences between guardianship and conservatorship is crucial when considering the best course of action for your loved ones. Both options offer valuable protections but serve different needs. As with any legal process, the laws surrounding guardianship and conservatorship can be complex and vary from state to state, requiring careful consideration to navigate.
With a guardianship lawyer’s in-depth knowledge of the state’s laws and their extensive experience, they can guide you through the legal processes involved in establishing guardianship or conservatorship. At The Matus Law Group, our team of New Jersey guardianship attorneys may be able to help evaluate your unique circumstances and provide counsel on the best course of action, ensuring that your loved one’s needs are met and their rights are protected. With a New Jersey guardianship lawyer on your side, you can have peace of mind knowing that your loved ones’ best interests are represented. Contact us today at (732) 785-4453 to schedule a consultation.
