Understanding the Differences Between Guardianship & Conservatorship
The pop star Britney Spears has surfaced in popular news lately because she is contesting her conservatorship. Many people have questions about what a conservatorship is and when it is invoked, especially with young adults. However, California conservatorships differ widely from conservatorships in Florida. In addition, although you may hear the terms used interchangeably, guardianship and conservatorship are two different legal principles that both fall under the umbrella of estate administration. Deciding if a guardianship is right for your elderly loved one is a difficult decision that should not be made lightly. It is crucial you have a concrete understanding of the law in this area first.
What is a Conservatorship and When is it Used?
A conservatorship is granted by a judge and overseen by a conservator. A conservatorship is created if the petitioner can prove that the person requiring a conservatorship is “absentee”. In Florida, there are limited cases where a person is considered an absentee. Absentee is applied to service members in the military who are overseas or serving abroad and are declared missing in action by the service branch they are a part of. At least one calendar year must pass with no communication or sign from the servicemember for them to be declared missing in action. A family member back home can petition for conservatorship to manage the military absentee’s estate if the petition is granted by a judge. A person is also classified as an absentee in Florida if they disappeared or are missing and are presumed dead based on the circumstances of the disappearance Fla. Stat. §747.035 (2020). In that case, the person seeking conservatorship must petition the court and prove the existence of a close or familial relationship with the absentee.
What about Legal Guardianship for Elderly Loved Ones?
There are two types of legal guardianships for elders in Florida. For the purposes of this discussion, the author will explain guardianship of the person. In a future blog, the author will explain guardianship of the property. Guardianship of the person means a family member (usually an adult child) files a petition to act as legal guardian over an elderly parent or relative. If there is no objection to the potential guardian’s petition, the court will grant the guardianship, giving the guardian surrogate decision making authority over the elderly relative. The guardian may also be granted authority over the elder’s personal property and assets as well. In their petition, the potential guardian must prove that the elder has diminished cognitive, physical or mental ability to care for themselves. This may be a result of advanced mental or physical disability. Once a guardianship is granted, the elder is referred to as a ward, and the guardian can act on the ward’s behalf regarding simple decisions like everyday activities as well as legal and health care matters. If you have questions about guardianship of the person, contact our elder law attorneys at Millhorn Elder Law Planning Group.
Let Us Help You Today
As loved ones approach old age and experience the effects of dementia, Alzheimer’s or another neurological disorder, it can be difficult to come to terms with. But your loved one needs your help. Even if they are adamant that they are fine, one day might look different than the next, and they can present a danger to themselves. If this is the case, it might be time to investigate an elder guardianship. In addition, if you are in a position where you believe a conservatorship is necessary, you should not attempt to file a petition on your own. These matters are convoluted and require adherence to strict procedural rules. Our estate planning attorneys at Millhorn Elder Law Planning Group serve clients throughout The Villages. Call today to schedule a consultation.