New Jersey Estate Planning: The Difference Between a Conservatorship and a Guardianship

guardianship

As New Jersey residents age, they can develop mental and physical disabilities that make it difficult to handle their personal affairs. Certain children who turn eighteen—such as those with certain disabilities—may have special physical and emotional needs that need to be addressed so they can function and live their lives. Concerned parents, family members, and friends often want to help out the people they love but face legal roadblocks that prevent them from working with banks, getting medical information, or arranging for long-term care.

Guardianships and conservatorships are two legal methods the lawyers at Matus Law use to help those in need get the care and attention they deserve. While there are some similarities between these two tools, there are several key differences that differentiate them from one another. Our lawyers understand what guardianships and conservatorships are, how they are created, who can become a guardian or conservator, and the duties that are required of each type. We also know when a guardian should be used and when a conservator is the better option.

What is a guardianship?

Guardianship is a court process for appointing a guardian, more formally called a guardian of the person, to represent someone who is mentally incapacitated. Individuals cannot appoint their own guardian. Guardianship appointments are not voluntary. An interested person (or entity) files a formal application in New Jersey asserting that an individual cannot manage his/her own affairs and that a guardian is needed.

Medical evidence such as the testimony of a psychiatrist or gerontologist is usually required to confirm that the person is not competent. Once incompetency is established, the court reviews the qualifications of the person seeking to be appointed guardian. Guardians have a fiduciary duty based on trust to act solely and selflessly in the best interests of the individual, the person who needs care.

A guardian is often necessary if a person has dementia or Alzheimer’s. The person needing care does have the right to assert that he/she is competent and can manage his/her affairs.

Duties of a Guardian

A guardian of the person makes decisions on behalf of the individual such as where the individual lives, medical decisions including medical treatment, and keeps up with the personal, day-to-day maintenance of the individual. All actions by the guardian must be in the best interest of the individual. Guardians can also decide who the individual spends time with. Some actions such as giving medications that have serious side effects may need additional court approval.

Who qualifies as a guardian?

The guardian is usually a spouse, a relative such as a son or daughter, or a trusted friend. Parents generally do not need approval to take care of their children. Guardians do not have to be related to the individual. Lawyers, private organizations, state-agencies such as the New Jersey Bureau of Guardianship Services, and professional guardians can also be appointed a guardian of the person.

What is a conservator?

A guardian of the estate is known as a conservator. The conservator manages the financial affairs of the individual such as collecting assets and income, manage the assets, and preserving their value. Like guardians of the person, conservators are often family members. They can also be friends, government agencies, lawyers, an organization, or a professional conservator.

The creation of a conservatorship, usually for aging parents or grandparents, does not automatically require that the conservatee be mentally incapacitated. The creation of a conservator is voluntary and is sometimes created with the consent of the conservatee.

Duties of a conservator

The conservator is obligated to provide for the care of the individual. The conservator has the power and duty to:

  • Make necessary payments for the conservatee’s education, support and maintenance
  • Pay any legal debts the conservatee owes
  • Collect and manage the assets of the conservatee
  • Collect any sums of money due the conservatee
  • Pay all appropriate taxes
  • Participate in estate planning

Conservators are often needed to file for Medicaid, Medicare benefits, or Social Security benefits on behalf of the individual.

Guardianship or Conservatorship?

The same person can be appointed guardian of the person and the conservator. This type of relationship is known as a plenary guardianship.

Special guardianship considerations:

Where the guardian of the person and the conservator are different people, the guardian of the person usually has ultimate control. For example, if the individual needs medical care, the guardian of the person decides if the care is needed and what treatment is required. The guardian then requests that the conservator make the payments. If there are not enough funds to pay for the care, such as long-term care, then the court usually hears or mediates the conflict.

New Jersey allows for the appointment of a limited guardian. This type of guardian has limited powers that are detailed in the appointment. Guardians are also sometimes appointed to represent an individual during litigation—known as pendete lite. Finally, guardians of a minor can be appointed through a parent’s will.

Special conservator considerations:

You should be aware that conservators are normally required to prepare regular accountings of the financial matters they handle, and they generally cannot write a will on behalf of the individual.

Speak with a Caring New Jersey Needs Attorney Today

For years the Matus Law Group has been helping New Jersey residents create guardianships and conservatorships for their loved ones. We also contest guardianships and conservatorships when warranted. Additionally, our firm can give you advice on other possible options such as special needs trusts and powers of attorney. For help now, please call our firm at (732) 281-0060.

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Christine Matus

Christine Matus