Guardianship & Conservatorship FAQs

From our convenient location in Oakland, the attorneys of Campbell Law Offices are well-positioned to assist families, individuals, and fiduciaries in estate planning matters throughout Alameda County, Walnut Creek, and the San Francisco Bay Area.  As part of our commitment to providing our clients with comprehensive support, we have providing the following answers to some frequently asked questions regarding conservatorships and guardianships in California.  If you would like personalized assistance from our experienced attorneys, contact the Campbell Law Offices to schedule a consultation.

Q. What is the difference between a guardianship and a conservatorship?
A.  In California, a guardian is appointed to care for a minor child's personal well-being, finances, or both, when the child's parents are no longer able to care for the child because of death, incapacity, or another reason.  In contrast, a conservator is appointed by the court to care for an adult's personal well-being, finances, or both, when that adult can no longer care for his or herself because of incapacity.

Q. How is a guardian appointed?
A.  Generally, a parent may nominate a guardian or guardians of the minor child's person or estate when both parents nominate the same guardians, the other parent consents to the nominations, or the other parent is either deceased or incapacitated.  The child's relative or another person acting on behalf of the minor child may also file a petition for the appointment of a guardian or guardians.  However, by nominating a guardian in a will or other estate planning instrument, parents can help ensure that their choice for guardian will be appointed to care for their child should they become deceased or incapacitated.

Unless waived by the court, an investigator generally investigates proposed guardians before their appointment, files a report with the court, and makes recommendations.  If a proposed guardian is a relative, he or she is usually investigated by a court investigator; whereas, non-relatives are investigated by a designated county agency.  The court will appoint a nominated guardian based on what appears to be in the best interest of the child, taking into consideration the proposed guardian's ability to manage and preserve the estate and the guardian's concern for the welfare of the child. 

Q.  How is a conservator appointed?
A.  A petition for the appointment of a conservator or conservators may be filed by the proposed conservatee (incapacitated person), a spouse or domestic partner, a relative, a state or local agency, or any other interested person or friend.  The selection of a conservator or conservators is solely in the discretion of the court, based on what appears to be in the best interest of the conservatee.  When a conservatee still has sufficient mental capacity at the time the conservatorship is being established, he or she may nominate a conservator or conservators by petitioning the court, or in a writing that is signed before or after a petition is filed.  The court will generally appoint the conservatee's nominee as conservator unless the court finds it is not in the conservatee's best interest.

A spouse, domestic partner, adult child, parent, or sibling of the conservatee may also nominate a conservatee in the petition for conservatorship or at the hearing on the petition.  Generally, the nominated conservator will be given some preference by the court, however the court may not appoint the nominee (or any nominee) if it is not in the conservatee's (or proposed conservatee's) best interest.

Q. Who can be appointed as a conservator?
A.  Almost any adult or entity that is eligible under the law can act as conservator if the court finds the appointment is in the best interest of the conservatee.  Subject to certain conditions, preference is given, in order, to the conservatee's spouse or domestic partner, an adult child of the conservatee, a parent, a sibling, and then to any other person or entity that is eligible for appointment.