Guardianship and Conservatorship FAQs
The following are some frequently asked questions we receive at Fullerton, Lemann, Schaefer & Dominick, LLP regarding guardianships and conservatorships. If you have a specific question or would like further information, please see our guardianship and conservatorship pages, or contact Fullerton, Lemann, Schaefer & Dominick, LLP. We serve clients in San Bernardino and Riverside Counties and throughout the Inland Empire Region of Southern California.
Q: If I am ill or dying, can I request a guardian for my child?
A: If you have legal custody of your child and have an incurable illness, you can ask the court to appoint a joint guardian for your child, thereby making the transition to sole guardian easier if you pass away. This will give you the comfort of knowing your child will be safe with your selection for guardian. If the court approves the joint guardianship, both you and the guardian will have the rights and authority of parents of the child until you pass away. When you pass away, the joint guardian will have full authority as guardian without the need for another guardianship proceeding.
Q: Is a guardianship the same as an adoption?
A: No. There are distinct differences between a guardianship and an adoption. In a guardianship, the parents still have parental rights, whereas in an adoption the parents’ rights are permanently terminated. Guardians may be supervised by the court, whereas adoptive families are not supervised by the court. The court may terminate a guardianship, whereas an adoption is usually final. There are other distinctions between a guardianship and an adoption – consult with an attorney for further information.
Q: Is it possible to avoid the need for a conservatorship if I become incapacitated?
A. Yes. A trust allows you to name a successor trustee who will manage the assets of the trust for your benefit if you become incapacitated. Documents such as durable financial powers of attorney and advance health care directives allow you to specify who will make financial and medical decisions on your behalf in the event you become incapacitated. A comprehensive estate plan always takes into consideration what will happen in case you become incapacitated.
Q: Does the conservatee automatically lose all rights in a conservatorship?
A. No. The conservatee retains certain rights, including the right to be treated with understanding and respect, to have their wishes considered, and to be well-cared for by their conservator. In addition, the conservatee may retain other rights, unless the court determines otherwise, including the right to:
- Control their own salary;
- Make or change their will;
- Get married;
- Receive mail;
- Be represented by a lawyer;
- Ask a judge to change conservators;
- Ask a judge to end the conservatorship;
- Vote (unless a judge determines they are unable to);
- Control personal spending money if a judge says they can have an allowance; and
- Make their own health-care decisions, unless a judge gives that right to a conservator.
It is important to consult with your attorney regarding the rights the conservatee retains and the duties and obligations of a conservator.