In California, conservatorships and guardianships are two similar but different legal constructs. In both cases, there is an individual with a need for another person to provide for their care in some sense, whether this be physical care or to make decisions on their behalf. What then is the difference between a guardianship and a Conservatorship, and how do you know which is best for your unique needs or those of a loved one?
In a conservatorship, the individual needing care is an adult. Generally, in a guardianship, the individual needing care is a minor. Thus, a core difference between guardianship and conservatorship is guardianships are for minors, and conservatorships are for adults. The person who is to provide the needed care is appointed by the Court through a conservatorship or guardianship proceeding.
A conservatorship may be appropriate when an adult is unable to care for themselves or manage their own affairs. This can look very different depending on the situation.
Some examples of when conservatorships may be appropriate are in the case of an elderly relative who is no longer self-sufficient and requires help managing their finances and well-being, or when an adult becomes dependent due to an accident or disability.
A guardianship may be appropriate when a child does not have a parent providing for their care. This, too, can look very different depending on the situation.
For example, guardians may be appointed when parents are unable or unwilling to care for the financial and physical well-being of their child due to physical or mental illness, incarceration, substance/physical abuse, or death. A guardianship may also be appropriate when a child has a significant financial estate that needs to be managed by an adult, such as in the case where the child’s parents have passed away.
There are several types of guardianship in California. The first type of legal guardianship in California is guardianship of the person. This is when the Court appoints a legal guardian to care for a child when the custodial parents are no longer able to.
Although the parent retains their parental rights, the guardian in these cases is awarded legal and physical custody of the child, or ward. The guardian is therefore responsible for tending to the child’s physical and emotional wellbeing and must provide food, shelter, clothing, medical and dental needs, and more.
A guardianship of the person may be either a temporary guardianship or general guardianship. Any guardianship appointment that is not considered temporary is a general guardianship. A temporary guardianship is temporary in the sense that it is short term.
However, typically a temporary guardianship ends because a general guardianship is ordered, not because the circumstances that warranted a guardianship in the first place have been resolved.
A temporary guardianship may be appropriate in an emergency, such as when both custodial parents die unexpectedly. This may be referred to as an emergency guardianship in California. A temporary guardianship may also serve as an interim order while the appropriateness of a general guardianship is being investigated.
The second type of guardianship in California is guardianship of the estate. This is when the Court appoints a legal guardian to manage a child’s estate. This estate may include income earned by a child or inherited or gifted assets. A guardian of the estate is required to keep detailed records and file accountings with the Court.
The third type of legal guardianship in California is a guardianship in the context of a dependency case. This is when a child has become a dependent of the Court, and the Court then appoints a guardian to care for the child in that dependency case.
In certain situations, legal guardianship of the person may be granted to avoid the child going into the dependency system in the first place. If Child Protective Services is involved and a child is being considered for removal from the home, guardianship of the person may be appropriate.
There are several types of conservatorships in California. The first type of conservatorship in California is a conservatorship of the person. This is when the Court appoints a legal conservator to care for an adult when the adult is no longer able to do so.
The conservator is responsible for ensuring that the conservatee has proper food, clothing, shelter, and health care. A conservator of the person may also need to make medical decisions on the conservatee’s behalf.
The second type of conservatorship in California is conservatorship of the estate. The conservator is responsible for handling the conservatee’s financial matters, including protecting income, property, paying bills, making investments, and preparing and filing taxes. A conservator of the estate may need to prepare financial reports for the Court and other interested parties.
A conservatorship often is applied to elderly people, which may be known in California as an elderly conservatorship. However, a conservatorship can also apply to seriously impaired adults of any age. The threshold question is whether the dependent adult is able to manage their own affairs and make their own choices and to what extent.
A conservatorship may be general or limited. A limited conservatorship is intended for adults who cannot fully care for themselves or their finances, but who do not necessarily need the same level of care as those in a general conservatorship. Thus, a general conservatorship is more expansive as the name implies.
A conservatorship may also be temporary. It can be established when a person needs immediate assistance for a limited duration of time. A conservator differs from a guardian ad litem; the latter is appointed by the Court to represent an incompetent party during legal proceedings, such as a divorce when the other spouse is the conservator.
To become a legal guardian in California, you must initiate a guardianship case. To initiate a guardianship case, you first file a petition for the appointment of a guardian of the minor, either Form GC-210(P) Petition for Appointment of Guardian of the Person or Form GC-210 Petition for Appointment of Guardian of Minor. There are several forms that need to be attached to the petition, including, but not necessarily limited to Form GC-210 (CA) Guardianship-Petition – Child Information Attachment, GC-120 Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act, Form GC-212 Confidential Guardianship Screening Form.
Additional forms may be required depending on the county in which you reside. The petition may be filed by a relative or other person on behalf of the minor or, if the minor is 12 years old or older, the minor may file the petition on their own behalf.
Once the petition is filed, a hearing date will be scheduled. At that point, you will need to complete Form GC-020 Notice of Hearing – Guardianship or Conservatorship and provide notice of the proceeding to several individuals by serving the notice, along with a copy of the petition on various individuals. For a general guardianship, the proposed ward (if age 12 or older), any person having legal custody, the parents, and anyone nominated as guardian must be personally served. In addition, grandparents and siblings need to be served by mail.
Service must be completed 15 days prior to the hearing, and a proof of service filed with the Court. In some cases, notice may be waived if the person cannot with reasonable diligence be given the notice or if the giving of the notice would be contrary to the interests of justice, e.g., if providing notice puts the child at risk for immediate harm.
Between the time a petition is filed and the hearing date on a general guardianship petition, an investigation will be completed. You will need to notify the investigator of the pending guardianship proceeding. This investigation typically includes a social history of the proposed guardian, a social history of the proposed ward, the relationship between the proposed guardian and the proposed ward, the anticipated duration of the guardianship and the plans to provide for a stable and permanent home for the child.
The investigator generally has access to the proposed ward’s school records, probation records, public and private social services records, and a summary of the proposed ward’s medical and psychological records.
At the hearing, the Court must read and consider the report prepared by the investigator. After reviewing the report, the Court may grant the guardianship of a child in California if it appears necessary or convenient, consistent with the public policy of the State of California to ensure that health, safety, and welfare of children is the Court’s primary concern. If the guardianship is granted, the Court may make visitation orders for one or both parents, if appropriate.
The process can take some time. The amount of time depends on the Court’s availability, the investigator’s ability, how quickly service is complete, among other factors.
If there is a need for a guardianship sooner, it may be appropriate to file for a temporary guardianship with your petition for guardianship. The initial steps are similar, but there are less people to notify, and there is no formal investigation required. This allows for the temporary guardianship to be ordered in the interim, while the more thorough investigation needed for a general guardianship is being completed.
In summary, with respect to conservator vs. guardian, while in both cases the individual is appointed by the Court to provide care for another individual, in a conservatorship, the individual needing care is an adult whereas in a legal guardianship in California, generally the individual needing care is a minor.
This blog discusses the general legal process to obtain a guardianship or conservatorship in the state of California. However, the legal process of pursuing a guardianship or conservatorship is often quite complex. There are many intricacies. Our team of guardianship attorneys at Cage & Miles, LLP can work with you to navigate that often complex process.
Contact our team at (858) 943-2060 today.