As the old saying goes, "If you fail to plan, you plan to fail." Unfortunately, many people do not take the time to plan on what would happen to them and/or their children if they ever became incapable of making decisions.
One of the best ways to prepare for this situation is to spell out your plans. For example, do you need to establish guardianship? Will you need a conservator? The first step is to understand the difference between the two.
What Is Guardianship?
Often, the words guardianship and conservatorship are used interchangeably. While these terms may mean essentially the same thing in some states, this is not the case in California.
In California, guardianship is used to protect the affairs of minor children. A guardian could be needed in the event of your death or if you ever become unable to parent for any reason.
The person who is appointed guardian would assume all parental duties, including custody and authority over your children. A guardian would be able to:
- Provide shelter, food, and clothing
- Make financial decisions
- Make medical decisions
- Make education decisions
You could list your choice of guardian in your will, or one may be court appointed if you become incapacitated or disabled before selecting a guardian. If court appointed, the guardian would have a periodic reporting responsibility to the court.
What Is Conservatorship?
Conservatorship is very similar to guardianship in that a person is appointed by the court to take over the care and control of the affairs of someone else, or the conservatee. In the case of conservatorship, the conservatee is usually an adult who is not able to manage their own affairs.
For example, you may need a conservator if you are involved in an accident or have a debilitating disease and become mentally unable to make your own decisions. You may also need to appoint a conservator over your disabled adult child and/or your elderly parents.
Unlike Guardianship, there are two basic types of conservatorship in California. These are:
- Conservator of the Person — one who manages the personal affairs of the conservatee.
- Conservator of the Estate — one who manages the financial affairs of the conservatee.
Many times, both of these are the same person, but in some cases, different people may be appointed to each role. The person who fulfills these roles may be a friend or family member chosen by the conservatee in advance, or they may be a professional chosen by the person or the court.
If a professional, or a non-profit agency, is used as a conservator, they must be licensed by the State of California in order to do so. They are also required to have continuing education to maintain their eligibility.
Once appointed, they are responsible to submit a financial report to the court at the end of the first year and every two years thereafter. This report will outline assets and expenditures that have taken place during the preceding review period.
How Do You Create a Plan?
You do not want just anyone making decisions for you and/or your children. You want someone you can trust appointed in both of these roles. To ensure you and your family are cared for following your death or incapacitation, put a plan in place before either position is needed.
Clara Yang Attorney At Law can assist you with creating the legal documentation to ensure your choices are in place if they are ever needed. We have years of experience in estate planning and elder law. Give us a call today so we can help you create your plan.