What is the difference between a Guardianship and Conservatorship?

You may need a Guardianship or Conservatorship to be able make medical or financial decisions for your loved one. When an adult is no longer able to make important decisions because of a mental or physical illness, they often rely on their family and friends for help.

A Guardianship allows you to make medical and placement decisions for a loved one who does not have a Power of Attorney or Advance Directive. In Oregon, a Guardian may be appointed for an adult if it is necessary to protect and promote that person’s well-being.

Someone who has had a Guardian appointed for them is called the “protected person.” Having a Guardian does not mean the protected person has been declared incompetent; the protected person retains their civil rights. However, once appointed, the Guardian is authorized to make medical decisions and placement decisions for the protected person. This can include scheduling and transport to doctor’s appointments, changing doctors as needed, and deciding where the protected person will live.

The process of becoming a Guardian is handled through the probate court. It is a public proceeding that requires a petition to the court stating the grounds for the Guardianship and nominating a suitable person to serve as Guardian. The court appoints its own advocate, called a “court visitor” to investigate the allegations made in the petition.  Family members and other interested parties are given the opportunity to object. If the court determines that the protected person lacks capacity and that the nominated Guardian is qualified and suitable, the Guardian is appointed.

Conservatorship is needed to protect the estate of protected person by managing their finances for their benefit. In order to make financial decisions for a loved one who has not prepared a Power of Attorney for Finances or created a Revocable Living Trust, it may be necessary to petition the court for the appointment of a Conservator.

The appointment of a Conservator by the court requires a judge to determine that someone has financial resources that require management, and that the person is incapable of managing those resources themselves. Situations where a Conservator may be appointed include a senior or other person who is vulnerable to financial exploitation, a minor who receives an inheritance or settlement, or someone who chronically struggles to pay their bills.

It is possible to anticipate and plan for future incapacity with a well-crafted estate plan. See our post here to learn more about the advantages of having a Power of Attorney for Finances and a Medical Advance Directive.

An experienced Guardianship or Conservatorship Attorney with the Law Offices of Nay & Friedenberg can help you understand your options. Contact us at (503) 245-0894 to set an appointment.