The widespread attention on the conservatorship case involving pop star Britney Spears has a lot of people who aren’t lawyers wondering: What is a conservatorship? What does it entail? And how is a conservatorship different from guardianship?
It’s difficult to provide a short answer. That’s because, in the US, conservatorships and guardianships are both governed by state law, and the specific definition varies from state to state. In some cases, the terms are used much in the same way.
In this article, we’ll provide simple, general definitions of conservatorship and guardianship, explain how they often differ, and discuss the ways they can overlap—as well as examine the difference between conservatorship and power of attorney.
Note: None of what you read here should be considered legal advice. Always consult a lawyer before getting involved in a conservatorship or guardianship—or any other legal arrangement.
What is a conservatorship?
In the context of law, a conservatorship is “an agreement or order under which one person or entity controls the personal and financial affairs of another, such as a minor or someone who is considered legally incapable of managing their own affairs.”
In a conservatorship, the person controlling the personal and financial affairs of another is called a conservator. The conservator may be in charge of things like paying bills, taking out loans, or purchasing real estate—all on behalf of the person whom the conservatorship applies to (sometimes called the conservatee). In such an arrangement, the conservatee does not have the legal ability to make these decisions themselves. Which decisions or actions the conservator is legally allowed to make depends on state law and the specifics of the conservatorship agreement. In some cases, a conservator is only able to make decisions regarding the conservatee’s estate.
A conservatorship must be approved by a state court via a petition from the potential conservator. In many cases, a conservatorship is only granted if the state determines the conservatee to be “incapapacitated” or “incompotent” (in the legal senses of the words—due to a mental condition, for example). For this reason, the consent of the conservatee is not required—under the understanding that they cannot give consent, in a legal sense, due to such incapacitation or incompetence. However, a conservatee can petition the court to end the conservatorship.
In practice, conservatorships are usually pursued by family members of a person who has a serious disorder or has some major impediment to making their own legal decisions, such as being in prison.
In the case of Britney Spears, her father and lawyer were granted temporary and then permanent conservatorship over her assets after she was placed under temporary psychiatric care in 2008. As part of the agreement, the court also gave Spears’s father legal power to make personal decisions on behalf of Spears as well. While many conservatorships are not so controversial, the practice has faced criticism, particularly because of the potential of conservators to take advantage of conservatees and the difficulty that conservatees can have trying to end the conservatorship.
What is a guardianship?
In a legal context, a guardianship (sometimes called a legal guardianship) is a relationship in which one person (called the guardian) can legally make decisions, usually personal but sometimes also financial, on behalf of another person (often called the ward).
In such an arrangement, the guardian is defined as “a person who is entrusted by law with the care of the person or property, or both, of another, as a minor or someone legally incapable of managing their own affairs.”
Like conservatorships, guardianships must be approved by a state court, do not require the ward’s consent, and involve the ward losing the ability to make their own legal decisions.
Personal decisions that can be made by a guardian involve things such as healthcare, housing, and education.
Many guardianship agreements involve children (minors) whose parents have died, are in prison, or have serious medical disorders. In cases involving adults, guardianships are usually granted to family members or others who seek to care for a person who has a severe mental condition or other disability that prohibits them from making their own personal decisions—often specifically those involving medical care.
What’s the difference between conservatorship vs. guardianship?
There is a lot of overlap between conservatorships and guardianships and how these terms and arrangements are defined under state law. Both involve someone making legal decisions on behalf of another person under an arrangement approved by a state court. In some states, there isn’t much of a legal distinction between the two. In other states, it is possible for the same person to be both a conservator and a guardian for someone—allowing them to make both financial and personal decisions for that person.
In states where the legal definitions of the terms differ, the most common difference is that a conservatorship usually only involves legal responsibility for financial decisions, while a guardianship usually only involves legal responsibility for personal decisions. In general, guardianship most commonly applies to minors, while conservatorships most often apply to adults. Still, the specifics of such arrangements vary widely from state to state.
Conservatorship vs. Power of Attorney
A person (often called the agent) is said to have power of attorney when they have the legal authority to make decisions on behalf of another person (often called the principal) who has authorized the arrangement. This can include financial decisions, personal decisions, or both. The big difference between power of attorney and a conservatorship is that power of attorney requires the consent of everyone involved and does not involve any loss of legal rights on the part of the one on whose behalf decisions are being made. In other words, granting power of attorney never limits someone’s ability to act on their own behalf. Unlike a conservatorship, a person with power of attorney is typically only given legal authority in very specific situations, which are detailed in the power of attorney agreement.
For example, a person might give a spouse or other family member temporary power of attorney in order to make certain payments while they are in recovery from a medical procedure. A common use involves a person assigning an agent power of attorney to manage investments on their behalf.