Estate Planning - Guardianships and Conservatorships
GUARDIANSHIPS
Guardianships are a process by which a person is appointed by the court to oversee the physical care of a minor or an incapacitated adult. In a Guardianship proceeding a person petitions the court to be the Guardian of a minor, disabled or incapacitated person. The court will assign a court visitor to interview the proposed guardian, the incapacitated person and to report back to the court the court visitor’s findings. Once appointed the Guardian has a fiduciary duty to make sure that the physical needs of the incapacitated (protected person) are met. The Guardian must file a report every year on the anniversary of his or her appointment.
CONSERVATORSHIPS
Conservatorships are a process by which a person is appointed by the court to oversee and take care of the financial affairs of the protected person. Just like in a Guardianship proceeding, a person is appointed by the court to be the conservator after a petition is filed seeking the conservatorship and after a court visitor has interviewed the proposed protected person and the proposed conservator. Once appointed the Conservator is under a fiduciary duty to pay all of the bills for the protected person, oversee that investments, if any, are appropriately invested, and in general oversee and manage the financial affairs of the protected person. As stated above, initiating a conservatorship or a guardianship is expensive and costs several thousand dollars. The annual accounting is also expensive since it requires not only the details of each and every receipt and disbursement throughout the accounting year, but the courts have detailed and complex rules for how the accounting is to be presented to the courts.
In Oregon there is a distinction between a Guardianship and a Conservatorship. In a Guardianship a person is overseeing the care and physical needs of a protected person. In a Conservatorship a person is overseeing the financial affairs of the protected person. A properly drafted power of attorney and a properly drafted Trust can avoid the need for a Conservatorship. In some states, the term Guardianship and Conservatorship are used interchangeably and mean the same thing.