Every individual hopes to live an independent life in which they are able manage their own affairs. However, mental or physical incapacity may leave a person unable to make informed decisions for themselves.
In such cases, conservatorship and guardianship are legal tools that can be used to help protect an adult or child’s wellbeing. Both involve court proceedings in which a judge gives an appointed conservator or guardian the responsibility for making various decisions on an incapacitated person’s behalf. Such decisions may be of a legal, medical, financial or personal nature.
In California, guardianship refers only to the court appointment of an individual with the legal authority to represent and manage the affairs of a minor child. Conservatorships are for protecting incapacitated adults and typically involve matters related to health care and estate. Many states use the term “guardianship” instead of “conservatorship” when referring to the same duties for adults. In these states “conservator” refers to someone appointed to only handle finances.
California courts typically establish guardianships if both parents are unable to provide a child with a safe and secure home due to death, mental disability or other circumstances. Such arrangements allow a guardian to make decisions for the child until they are of legal age to care for themselves.
The need for conservatorship may arise if an adult individual experiences an injury, accident or other health event that causes them to become incapacitated. They may also require assistance in various areas of life after becoming mentally incapacitated due to disability or old age.
The process of issuing a conservatorship or guardianship is often difficult, costly and time-consuming. Conservatorship should be viewed as a last resort when a Durable Power of Attorney or Advance Health Care Directive has not been signed. Otherwise, it can impose significant limitations on a person’s ability to maintain their independence and freedom.
For all adults, creating an estate plan is an important step to take. Many people believe that only the wealthy need an estate plan, or that only people entering their retirement years do. However, the truth is that people of every station or stage of life should take action to make sure that their assets will be handled in accordance with their wishes when they die. And it is just as important to keep an estate plan updated as it is to create one. An estate plan should be reevaluated periodically to ensure that it accurately reflects any life changes or changes in how one wishes assets to be handled.
There is no set schedule to determine how often one's estate plan should be reviewed. In the absence of any major life changes, a review every few years may be adequate. However, there are certain times when a review is definitely necessary.
A change in marital status is one of those times. If one is getting married, then one will likely wish to add a spouse to estate planning documents. And if one is getting divorced, then one will likely wish to remove one's ex-spouse from an estate plan. Either process should be undertaken with the assistance of an estate planning professional. An estate plan may include many different types of documents, and it is important to be sure that the changes are properly recorded.
A growing family is another reason to review an estate plan. In addition to including children as beneficiaries of the estate, it is also important to name a guardian for the child in the event of one's death before the child reaches the age of majority.
Other life changes that may prompt an estate plan change include receiving a large sum of money, making a change in assets and property, and making changes in a business that one owns. It is important to make sure that an estate plan properly reflects one's financial state.
Even in the absence of these types of changes, it is still important to review an estate plan periodically. One should make sure that the person named as an executor or a power of attorney is still available — and still the person one wants to fulfill this role when it becomes necessary. In addition, an estate planning attorney can ensure that your estate plan is up to date with any changes in probate and tax laws.