What Is the Difference Between Guardianship and Conservatorship in Special Needs Scenarios?

What Is a Guardianship in Special Needs Cases?

Someone might seek guardianship for someone else if the latter person becomes unable to make decisions for themselves. This often happens in situations where someone has suffered a brain injury, been diagnosed with a form of dementia, or was born with special needs and is reaching the legal age of 18. In Utah, turning 18 means they are expected to be able to handle essential life decisions on their own.

For those who can’t, either because they lack the mental capacity or are unable to communicate and advocate for themselves effectively, someone may wish to be appointed guardian.

A guardianship is a mechanism to create a legal relationship between the guardian and the person to be protected in which the guardian is granted legal supervision of the protected person. It allows the guardian to legally make decisions for the person they’re appointed guardian of. A guardianship is an alternative to a power of attorney when a person does not have the requisite capacity to create one. A guardian must be appointed by a court. A guardian’s authority may be limited or extensive in scope. Utah law prefers a limited guardianship as guardianship affects the rights of those individuals for whom guardianship is sought. The relationship between a guardian and the person protected thereby is different from a parent child relationship although a guardian may be granted similar authorities such as determining where the protected needs person will live, where they’ll receive medical care, etc.

What Is a Conservatorship in Special Needs Cases?

A conservatorship also grants authority to make decisions for another person, however, while guardianship allows the guardian to make personal decisions for the person in their care (such as where they’ll live), a conservatorship only allows the conservator to manage the protected person’s finances and property. The conservator has no say in personal issues, such as where they’ll live. It’s possible to have the same person appointed as both a guardian and conservator for a protected person. It is also possible to have separate individuals appointed as a guardian and a conservator with the duties divided accordingly. You may also have multiple parties assume both or either roles as co-guardians and/or co-conservators.

How Can I Determine Whether a Guardianship or a Conservatorship Is More Appropriate in My Case?

Every case is unique, so it’s highly advisable to work with an experienced guardianship and conservatorship attorney to help you determine what’s in the best interests of the protected person you wish to care for.

To begin, it’s vital to understand what Utah courts require for each position.

• Guardian. Utah courts require clear, persuasive proof that the person allegedly needing guardianship does not currently and may never have the mental capacity to either receive and evaluate information, make decisions for themselves or to communicate about them, or provide for necessities such as food, shelter, clothing, health care, or safety. 
• Conservator. Utah courts require clear, persuasive proof that the person allegedly needing a conservator is unable to manage the person’s property and affairs effectively for reasons such as mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, confinement, detention by a foreign power, or disappearance; and has property which will be wasted or dissipated unless proper management is provided.  

Who Can Be Named a Guardian or Conservator for a Special Needs Person in Utah?

Utah courts usually look for family members or friends to act as guardians, or they may appoint a fiduciary, but technically anyone with an interest in the protected person or their estate may petition to become a guardian or conservator.

What Is a Special Needs Trust, and Should I Set Up One in Addition to the Guardianship or Conservatorship?

It’s possible to have someone appointed guardian or conservator to a protected person and also set up a special needs trust for them, depending on their needs. Special needs trusts are often created by parents or family members who have a family member who is disabled and will need care for the rest of their lives. The trust ensures that not only will there be financial assets available for their care and living that will be managed by a trustee, but it may also prevent the protected person from being denied benefits such as Social Security and Medicaid. That’s because the trust technically owns the assets, not the protected person.

Sometimes, people think they don’t need to worry about those benefits because the estate or the trust will be ample to provide everything the protected person needs. However, depending on how long the protected person lives and the severity of their disabilities, it’s a possibility that even a large estate will be run through before benefits arrive. A trust allows the benefits to begin sooner and may help keep the estate’s assets lasting longer than if no benefits were sought to begin with.

Again, these are complicated cases and should be discussed with an experienced estate planning attorney.

What Should I Do if I Want to Find the Best Way to Protect a Special Needs Person through My Estate Plan?

Call Able & Strong Law as soon as possible at 385-334-5024 to schedule a free, in-depth no obligation case evaluation. We understand how crucial it is for you to ensure the special needs person in your family will be cared for and that you have adequate resources in the future. Our team of experienced, knowledgeable guardianship and conservatorship attorneys can review the specifics of your estate and the needs required. We can advise you on what the right approach for the best outcomes could be to ensure everyone is taken care of so you know you have done everything you can.