ASA DIX LEGAL BRIEF
A PREVENTIVE LAW SERVICE OF THE JOINT READINESS CENTER LEGAL SECTION
UNITED STATES ARMY SUPPORT ACTIVITY DIX
KEEPING YOU INFORMED ON YOUR PERSONAL LEGAL NEEDS
GUARDIANSHIP
CONSERVATORSHIP
Q: WHAT IS THE PURPOSE OF APPOINTING A GUARDIAN OR CONSERVATOR?
A: Traditionally, there has been a distinction between “guardianship” and “conservatorship.” A guardian is a
person, institution, or agency appointed by a court to manage the personal affairs of minor children or adults
who lack the capacity to make or communicate responsible and/or sound decisions concerning their own
personal matters. Various states have identified adults with mental illness, developmental disability, physical
incapacity, chronic intoxication, and advanced age as lacking decisional capacity. While guardians are
appointed to manage personal affairs, such as food, health care, housing, etc., conservators are usually
appointed to specifically manage financial affairs. The minor or incapacitated person is called a “ward.”
Q. CAN A GUARDIAN AND A CONSERVATOR BE THE SAME PERSON?
A: Yes. A ward may have either a guardian or conservator, although he or she will usually have both. A
minor or incapacitated person who is incapable of handling his or her own personal affairs will usually be
incapable of managing financial matters. Thus, petitions for both a guardianship and conservatorship are often
filed together with the probate court (or other court with appropriate authority) and the proceedings for both are
combined. When both a guardian and a conservator must be appointed, the same person might serve in both
capacities.
Q. HOW IS A GUARDIAN OR CONSERVATOR APPOINTED?
A. Typically, the person seeking to be appointed the guardian or conservator of an alleged incapacitated person
will file a petition, accompanied by medical affidavits or sworn statements supporting that person’s incapacity,
with the probate court (or other court having appropriate authority) in the jurisdiction where the alleged
incapacitated person lives. The court will usually then appoint a “guardian ad litem” to evaluate the person’s
condition and prognosis, whereby a report will be submitted to the court. If the alleged incapacitated person
contests the appointment of a guardian or conservator, a trial will be scheduled and testimony will be presented.
However, if consent is given to the appointment of the guardian/conservator or the person is incapable of
responding, the court will schedule a hearing and witnesses will present testimony in support of the
incapacitation. If a guardian and/or conservator is appointed, the court will prepare and issue written documents
(often referred to as “letters of authority”) evidencing the guardian’s or conservator’s authority to act on behalf
of the incapacitated person. Certified copies normally are obtained and provided to interested parties such as
schools, hospitals, and government agencies upon request.
Q. DO GUARDIANS HAVE ANY FINANCIAL AUTHORITY OVER THEIR WARD?
A. Normally, yes. Guardians normally have limited powers under state probate codes. Guardians usually can
receive and use current income for the ward’s support and maintenance, and to pay off the ward’s bills.
Guardians normally may receive their ward’s Social Security benefits, disability income and similar benefits. If
the guardian and conservator are not the same person, then the guardian may be asked to assist the conservator
