Breaking Down The Main Distinctions Between Guardianships & Conservatorships in New Jersey

New Jersey law provides for circumstances when a person lacks or loses the ability to manage their financial and personal affairs. This is most often seen with older people who suffer from long-term illnesses, injuries, permanent disabilities, or cognitive downturns. However, that is not to say that guardianships and conservatorships are only for seniors. Anyone facing developmental disabilities, serious illness, or other circumstances that prevent them from handling their affairs could potentially be given this kind of oversight and protection. Guardianship and conservatorship are tools in estate planning that can protect someone who is unable to make decisions about their financial, medical, or living arrangements. Both have specific purposes and requirements. A conservatorship focuses on the management of the individual’s financial affairs. It can be created when the individual is mentally competent but needs assistance, while guardianship is used when the individual is unable to make decisions for themselves and requires daily assistance.

Estate planning is never something you want to do yourself. Having the proper documents, such as wills, trusts, guardianships, conservatorships, and others, is only one part of the process.  Motions must be filed, forms completed, taxes assessed, etc.  This requires meticulous review, following all legal processes to the letter, and formal drafting of documents to ensure your wishes are legally reflected.  There is no better option than an estate planning attorney to protect your financial future, especially when considering your needs for conservatorship or guardianship. At the Bronzino Law Firm, we focus on your concerns and wishes regarding your estate plan.  No one likes to think about the need for conservatorship or guardianship, but it is best to plan for it now.  We have successfully created estate plans for many clients and want to help you plan for your family’s future. To discuss which arrangement may be right for your needs and objectives, contact our attorneys for a free consultation at (732) 812-3102.

Conservatorships and Conservators Explained

A conservatorship protects the financial affairs and estate of an individual who cannot make financial decisions independently due to their advanced age, serious illness, or physical infirmity.  As much as family members may want to help, there comes a point where a legal representative of the estate must be entrusted with the financial affairs.  A conservatorship is usually obtained with the conservatee’s approval and must be formalized in court.  All financial and estate decisions will then be made through the conservator.

A conservator’s responsibilities are numerous. They ensure the financial needs for daily living expenses and support are available, oversee and safeguard the estate’s assets, pay any outstanding debts, collect money due to the estate, file and pay taxes, and participate in estate planning to secure the conservatee’s wishes. They often also manage Medicare, Medicaid, and Social Security benefits. A conservator must act in the conservatee’s best interest and is required to submit detailed reports to the courts regarding financial records, transactions, and the fiscal health of the estate.

Involuntary Nature of Guardianships and How they Happen

A guardianship is established as a protection for individuals who are mentally incapacitated, as in the case of the elderly, sufferers of senile dementia, stroke victims, sufferers of permanent head trauma, mental illness, or other cognitive disability.  A guardian is appointed by the court to represent someone who is mentally unable to take care of themselves and their finances.  An individual cannot choose their guardian because guardian appointments are not voluntary.  Typically, a family member will offer to serve as a guardian, or they may choose someone they feel is a good candidate.  They file a formal application with the court and provide medical evidence to substantiate the need for a guardian.

Once the ward’s incompetency is established, the court approves the guardianship. The duties of a guardian are focused more on the individual’s day-to-day activities and needs rather than their financial ones. A guardian makes daily decisions for their ward, such as where they live and their medical treatment. The ward relies on them for daily care and support. The guardian also makes financial decisions for them, such as buying necessities, groceries, and other items. They care for their home and personal possessions, such as clothes, furniture, and vehicles.

When establishing guardianship, the courts can request periodic reports including the ward’s condition, all care and services provided, expense records, medical records, and other pertinent information. Reports are usually scheduled every three or four months, up to every six months, or at the court’s discretion.

What Sets Guardianship and Conservatorship Apart in New Jersey

A guardianship is established for individuals who cannot conduct their daily life independently.  They are utterly incapable of making any decisions for themselves and need constant care.  A conservatorship is established for someone who cannot independently manage their financial decisions but is not completely incapacitated.  This role is more financial in nature, while guardianship encompasses more of the day-to-day living situations.  An individual may choose their conservator if they are mentally sound enough to do so, while guardians are not selected by their ward due to their incapacitated mental state.

The courts require regular reporting from guardians and conservators but are more heavily involved with the former. Guardians are held to a high standard and must provide frequent reports to the courts demonstrating the level of care they are providing. Conservators are required to provide financial statements but are usually under less scrutiny than guardians.

What Makes Someone a Good Guardian?

In guardianship, the ward is in a highly vulnerable position, so it is paramount for the guardian to be honest, organized, empathetic, kind, and responsible. Guardians are often family members, but not all family members are good guardians.  Someone with a criminal record, filed for bankruptcy, is unreliable, doesn’t have much formal education, is argumentative, or has little to no relationship with the family or the ward is not a good candidate.  Characteristics to look for are someone in good financial standing, has a working relationship with family members, has some knowledge of the ward’s daily needs, is willing to dedicate their time and efforts to the individual, and has a sincere interest in the ward’s well-being.

What Makes Someone a Good Conservator?

The individual can choose a conservator but should also have the qualifications necessary to manage the estate and its finances.  They should be responsible, organized, and personally in good financial standing.  A conservator must have professional financial management skills.  Just because Uncle Drew does your taxes as a side hustle does not mean he is financially adept enough to manage an estate.  A good candidate understands the repercussions of financial decisions such as selling property or investing in cryptocurrency.

Care vs. Finances: Guardianship & Conservatorship in Estate Planning

Guardianship and conservatorship are essential tools to manage your estate when you can no longer.  It is possible to have a guardian who is also a conservator, but you may not need both.  Having a conservator means someone can take some of the burden from you regarding the significant financial decisions you need to make.  They do the heavy lifting of finances, but you can input your ideas and do not need around-the-clock supervision and care.

Address Incapacity the Right Way with Help from Our NJ Legal Team

Planning an estate means creating legal documents and instructions to manage our estate during our lifetime and after our passing.  It gives instructions regarding how our assets should be managed and eventually distributed and outlines a plan in the event of our potential incapacity. The Bronzino Law Firm has worked with many clients in Belmar, Eatontown, Manasquan, Ocean Township, Lakewood, Neptune, Jackson, Brick, Wall, and throughout Ocean and Monmouth County to design a comprehensive, personalized estate plan, giving them the tools and guidance they need to have peace of mind regarding their estate and future care.  We will create a plan that fits your specific needs and is legally sound. It is never too early to start planning how you want your estate managed. Call us today at (732) 812-3102  to receive a free consultation, or contact us online.