GUARDIAN OR CONSERVATOR?
May 12, 2011 § 15 Comments
What is the difference between an adult guardianship and a conservatorship? The difference can significantly impact the course that the case takes, as illustrated by the decision in In the Matter of the Guardianship of Frank Lewis, a COA case decided October 5, 2010, that is the subject of this previous post.
I ran across this language from the case of Harvey v. Meador, 459 So.2d 288, 291-92 (Miss. 1984), that provides a general background:
“Initially, it is appropriate to distinguish guardianships from conservatorships. Guardians may be appointed for minors; incompetent adults; a person of unsound mind; alcoholics or drug addicts; convicts in the penitentiary; persons in the armed forces or merchant swamen reprted as missing; or for veterans; or minor wards of a veteran.
“The guardian is the legally recognized custodian of the person or property of another with prescribed fiduciary duties and responsibilities under court authority and direction. A ward under guardianship is under a legal disability or is adjudged incompetent.
“In recent decades there has been an increased number of older adults in our society who possess assets in need of protective services provided through guardianships. But modification of laws have broadened the definition of persons for whom assistance can be afforded by the courts, and such statutes do not restrict such protection only to the adult incompetent or insane.
“Noting that trend in our society, the Mississippi Legislature incorporated into law in 1962 the conservatorship procedure for persons who, by reasons of advanced age, physical incapacity, or mental weakness, were incapable of managing their own estates.
“Thus the Legislature provided a new procedure through conservatorship for supervision of estates of older adults with physical incapacity or mental weakness, without the stigma of legally declaring the person non compos mentis. This additional procedure was intended to encompass a broader class of people than just the incompetent.
“Therefore, the distinguishing feature of conservatorship from guardianship lies in part in the lack of necessity of an incompetency determination or the existence of a legal disability for its initiation. After establishment of such protective procedures, the duties, responsibilities and powers of a guardian or conservator are the same. However, the status of the ward in each arrangement is different.”
How the status of the ward is different under each arrangement is a matter for another post.