What Are the Differences Between Conservatorships and Guardianships?

by | Mar 20, 2024 | Guardianship

In New Jersey, guardianships and conservatorships are legal means to protect adults with disabilities, each serving distinct roles based on the individual’s condition and needs. While guardianship is a court-mandated role assigned after an adult is deemed incapacitated, conservatorship is a voluntary arrangement that does not require a declaration of incapacity. 

In this article, we clarify the critical differences between these two protective measures, their legal implications, and the circumstances under which each is appropriate, providing a comprehensive guide for those considering these options for the welfare of an adult with a disability.

Key Distinctions Between a Guardianship and a Conservatorship in New Jersey

Both guardianships and conservatorships are ways of protecting disabled adults, including older adults whose health is deteriorating due to cognitive issues or physical conditions. With guardianships and conservatorships, the court appoints a person to handle certain matters for the disabled adult.

However, it is important to distinguish between the two: a guardian will only be appointed after a disabled adult is adjudicated incapacitated, while a conservatorship is voluntary and does not result from a disabled adult being adjudicated incapacitated. We will go into more detail about the information below.

Guardianships and Protection of the Person and/or the Estate

When you have concerns about a disabled adult’s ability to provide personal care for themselves and to make decisions about their own well-being, you may need to seek guardianship. To be clear, a guardian is a person who is appointed by a court in New Jersey to make decisions on behalf of the disabled adult who is incapacitated, including decisions concerning health care, safety, and general welfare. Under New Jersey law, the process for guardianship of an incapacitated person usually begins with an action to determine the incapacity of the disabled adult. If that adult is determined to be incapacitated, then the court can appoint a guardianship.

As the Bureau of Guardianship Services explains, guardianship is only appropriate in circumstances where a disabled adult is legally incapacitated and is “not capable of making decisions independently.” Indeed, if you are seeking guardianship, it is critical to understand that “guardianship removes an individual’s fundamental right of self-determination,” and thus “should only be a solution of last resort.”

Guardianships can involve a guardian of the person, a guardian of the estate, or both. New Jersey defines a guardian of the person as “an individual appointed by the court to handle the personal affairs of another person who has been adjudicated incapacitated.” The state defines a guardian of the estate as “an individual appointed by the court to handle the financial affairs of another person who has been adjudicated incapacitated.” Guardianships can be general or limited in nature.

Financial Assistance through a Conservatorship to Protect a Disabled Adult

Conservatorships involve a person who functions as a guardian of the estate of a disabled adult, but conservatorships and the appointment of a conservator can be voluntary. To be clear, while guardianship—including a guardianship of the person or the estate, or both—occurs after a disabled adult has been adjudicated incapacitated, a conservatorship does not require the disabled adult to be adjudicated incapacitated.

As a conservator, an individual can make decisions about the disabled adult’s finances and can handle the affairs of the disabled adult’s estate. However, the disabled adult will not lose the right to make important decisions about their own safety or welfare. With a conservatorship, the disabled adult is known as the conservatee.

In the appointment of a conservator, New Jersey law clarifies that a hearing will take place that will involve the following: “The court, without a jury, shall take testimony in open court to determine whether the conservatee, by reason of advantaged age, illness or physical infirmity, is unable to care for or manage his or her property or has become unable to provide for himself or herself or others dependent upon him or her for support.” The statute clarifies that “in no case shall a conservator be appointed if the court finds that the conservatee objects thereto.”

Contact a New Jersey Guardianship and Conservatorship Lawyer

If you have questions about filing for guardianship or conservatorship in New Jersey, you should seek advice from a lawyer who can help. An experienced New Jersey guardianship attorney at the Law Offices of Wenarsky & Goldstein LLC can speak with you today about your circumstances. Contact us online or by phone at 973-453-2838 for more information.

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