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Guardianship versus conservatorship: What's the difference?

One of the key focus areas for estate planning for parents of young children is simply picking who is going to take care of them. It goes far beyond simply passing assets on to the kids, as would be done once they are adults. They need help and guidance moving forward. They need people who can stand in for their parents.

You may have heard two different terms related to this process: guardianship and conservatorship. There is often a lot of confusion about exactly what these mean, so let's take a moment to clear it up.

The similarities

In both cases, the term just refers to a person who agrees to help take care of someone else. The exact type of care differs from case to case, but it could mean giving them a place to live, dealing with their assets, caring for their basic needs and the like.

That's why it's so important to pick someone trustworthy who puts the other person's best interests first. They are basically taking on the parent's role.

The differences

Under California law, a guardianship is used when the person is a minor. A child who is under 18 years old gets care under this system. While this relationship may last for life, the legal obligation ends when they become an adult.

A conservatorship happens when the person is an adult. They may still need care due to special needs or mental and physical disabilities. Parents know that they have to provide this care for their child for life, regardless of the child's age.

The confusion

In other states, these terms differentiate between taking care of the financial assets and taking care of the person. In California, that's not how it works. Much of the confusion stems from misleading information coming from other states, which does not apply in California.

Picking a guardian

For those picking someone to fill this role in their estate plan, here are a few tips:

  • Do not assume that you have to pick another couple or that doing so is automatically the best idea.
  • Consider relatives, but do not assume you have to use them.
  • Think carefully about things like parenting styles and fundamental values.
  • Think about the financial picture, as well. It takes more than love to raise a child. It also has to be financially feasible.
  • Consider both health and age. For instance, many people automatically want to leave children with their own parents, or the children's grandparents, but will they be able to care for the kids until they are 18?

As you can see, there is a lot to think about. Those who are dealing with someone else's estate plan need to know what it means, why they drew it up that way and what legal steps they should take.

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