What is the difference between a Guardianship and Conservatorship?
The terms Guardianship or Conservatorship are often confused and in the state of Oregon, they are not the same thing.
- A guardianship covers authority over health care
- A conservatorship covers authority over money and assets
A guardianship may be in order when a person is unable to manage his or her physical needs and health care. If the person has not appointed someone to make health care decisions, state law allows for the approval of an Oregon guardianship. A guardian does not have a financial responsibility, but instead looks out for the physical and/or mental well-being of the “protected person.” A guardian makes decisions about issues such as where that person should live, and also makes sure he or she has proper nutrition and medical care. The guardian is appointed by the court.
- Someone — usually a family member — files a petition with the court to become the guardian.
- The court will consider whether this person is the best one to fill this role.
- If the court decides someone else would be better suited, it may appoint a disinterested third party to serve as the guardian. There are professional guardians who perform this service for a fee.
If you wish to have a voice in whom the court appoints as guardian or you become unable to care for yourself, you can nominate potential guardians in your Advance Directive or Last Will. The court gives priority to these nominations. In some situations, such as a physician’s order that you be held in a psychiatric unit, a guardian may have to be appointed by the court even if you have named someone in your Advance Directive.
If someone is unable to manage his or her financial affairs and has not executed a power of attorney for finances, state law allows for the appointment of an Oregon conservator. The conservator is appointed by the court.
- Someone—usually a family member—files a petition with the court to become the conservator for an individual.
- The petition will state that the individual in question is unable to manage his or her income and property without assistance—and without management assets will be wasted or dissipated. The petition must specify what is wrong with the person and give examples of his or her inability to manage financial affairs.
- If the court agrees that the person in question cannot manage his or her finances, the court will declare him or her a “protected person” appoint a conservator.
- The court will decide if the person who filed the petition is the best person to manage the financial affairs of the protected person. Usually, the court will appoint a family member.
- However, if the court believes it is in the best interest of the protected person, the court may appoint a disinterested third party to serve as conservator. There are professional conservators who perform this service for a fee.
- Once appointed, the conservator must file an inventory of the protected person’s assets with the court, transfer the assets into the conservatorship name, and obtain a bond that ensures the conservator’s honest management of the assets.
- The conservator must also prepare and file an annual accounting with the court to explain every receipt and disbursement of assets.
If you wish to have a voice in whom the court appoints, should you become unable to manage your affairs, you should nominate potential conservators in your legal documents. The court gives priority to these nominations, if possible.
Note: In the State of Washington, the term “guardianship” can be refer to either health care or financial management or both:
- Washington Guardianship of Estate: responsible for financial and estate matters only
- Washington Guardianship of Person: responsible for non-financial decision making
- Washington Guardianship of Person and Estate: a full guardianship of person and estate