Not all estate planning involves the distribution of assets after death; creating a plan to protect a minor child’s personal and financial well being in the event of a parent’s death or mental incapacitation, or a plan to follow when an adult becomes incapacitated and unable to make important healthcare and financial decisions, comprise estate planning, too.
Courts create guardianships to manage the affairs of minors in the event a parent dies or is deemed unfit because of drug use or mental disability. Some states recognize guardianships and conservatorships as fulfilling the same capacity, while other states differentiate between them. Some states, such as California recognize two types of conservatorship that include:
- Conservatorship of the person is charged with managing the personal affairs of an incapacitated person 18 years and older.
- Conservatorship of the estate is charged with managing the financial affairs of an incapacitated person 18 years and older.
The power transferred to a guardian or conservator in most cases include the ability to sell, transfer or convey property; waive rights; incur debts; make durable power of attorney; and serve as a fiduciary as trustee or executor of an estate.
The power of a conservator in most states includes the same as a guardianship with regard to the protection of an adult. In addition, if the court finds that the conservatee has capacity in any of these specific powers it can alter the conservatorship to include limited conservator powers.
If a family member observes personal or financial abuse of a minor or vulnerable adult in need of personal or financial protection, he or she may consider a court-ordered guardianship or conservatorship. Court supervision and oversight are the primary advantages of a guardianship or conservatorship. Courts provide the best guarantee or protection of the minor/conservatee’s personal and financial interests because they supervise the appointed guardians and conservators.