The Role of Conservators, Guardians, Trustees, Executors and Agents in Estate Planning

When creating your estate plan, it’s important to understand the critical roles you may need to name to manage your affairs. Among these roles are conservators, guardians, trustees, executors and agents, each serving distinct functions and responsibilities.

Knowing the nuances and potential intersections of these roles will help guide your decision on whom to choose for each one.

In this article, we cover the tasks of each role, where they may overlap and how you can approach choosing someone to fullfill each one.

What is a conservator?

The court appoints a conservator to oversee the finances of an individual declared unfit to manage their own affairs, thereby protecting those incapacitated due to physical or mental disabilities.

For example, a conservator may be named if a person experiences a sudden mental breakdown, if they become severely disabled, such as paralysis, or have chronic drug use. Well-known cases include Brian Wilson of The Beach Boys or Britney Spears, who both were placed in conservatorships for mental health reasons.

The main responsibilities of a conservator include financial management, such as paying bills, managing investments and ensuring that any financial obligations of the individual are met. A conservator usually retains a lawyer to ensure compliance with court rules, which typically include keeping the court up-to-date on the person's financial obligations and actions taken.

Most often, a conservator's responsibilities are limited to financial oversight. But other types of conservatorships include:

• General: A conservator has complete oversight over all aspects of a person’s decisions.

• Limited: This type gives the conservator control over certain aspects of the person’s life. This may allow a mentally disabled adult autonomy over most aspects of their life but requiring a financial allowance and/or health treatments.

How is a conservator named?

A conservatorship usually begins with a petition being filed with the court. The person who filed the petition, like a family member or parent of an adult child, details why they want a conservatorship. They typically need medical documentation proving that the individual is unable to live independently.

During the scheduled hearing, the court evaluates the evidence and hears testimonies from various parties, including the petitioner, other family members and medical professionals.

If a court approves the petition, it will select a conservator who is willing and able to serve. The person who files the petition may suggest themselves, or they can recommend someone else, but the judge will ultimately decide who is the best person.

How long does a conservatorship last?

The length of a conservatorship depends on the situation. In emergencies, a short-term conservatorship may last about 90 days. In the case of a temporary conservatorship, the length will be determined by the court.

A permanent conservatorship lasts indefinitely. Its length will vary depending on updates from the conservator and the reasons it was established. The court can revoke a permanent conservatorship if it decides it’s no longer needed.

What is a guardian?

A guardian is the person you choose to care for your children if something happens to you. Most often, the term "guardian" refers to a child or minor. The guardian has broad oversight decisions for your child, the same you have as a parent.

A guardian can also be named for an adult. The term is sometimes used interchangeably with "conservator." The differences are typically that guardianship refers to physical custody of the person, much like the guardian of a child, while a conservator manages their finances.

How is a guardian named?

You can name the guardian for your children in your estate plan. You can name multiple people in order of preference in case the chosen guardian is unable or unwilling to take care of your child.

It's important to make the decision carefully. Consider whether you trust them to raise your children according to their wishes, provide for them financially (especially regarding your estate’s assets) and the quality of life they’d be able to provide.

You should always talk to the person you're choosing to make sure they're willing to take on the responsibility. Failing to discuss your choice may result in their refusal to serve as your children’s guardian. If this occurs and no alternate guardians are named, the court will decide. Usually, this will be the closest family member, like a grandparent, uncle or aunt, based on the court’s assessment.

The decisions you make today are not set in stone. You can update your estate plan at any time if you have a falling out with the named person or if they pass away.

What is an agent in estate planning?

An agent is the person you name in your Financial Power of Attorney (FPOA) or Advance Health Care Directive (AHCD) to make decisions on your behalf if you become incapacitated.

The term “agent” may refer to someone who can make medical or financial decisions for you, should you not have the capacity to do so.

You can provide the agent with broad or limited powers over decisions, such as overseeing only specific financial decisions or transactions. It’s usually recommended that when creating your Financial Power of Attorney and Advance Health Care Directive that you be as specific and comprehensive as possible in what decisions they can make on your behalf. Otherwise, there’s a risk that their ability to make decisions for you could be delayed or negated due to vagueness or a dispute from another party, like a family member, hospital or financial institutions.

How is a Financial Power of Attorney or healthcare agent named?

You are able to name these people in your Financial Power of Attorney and Advance Health Care Directive documents.

You can update or revoke these documents if you wish to name someone else in the future.

How does a power of attorney agent interact with a guardian or conservator?

Naming a power of attorney gives you a significant level of control over who will make decisions for you if you become incapacitated—without having to go to the courts.

The agent may even eliminate the need to name a guardian or conservator for an adult. This can simplify the process of managing decisions during incapacity.

However, if there are any disputes about the scope of the power of attorney’s role, or if they were only granted limited decision-making authority, a court may still step in to name a conservator or guardian. Still, the agent(s) you named may still be able to help guide the court’s decision during hearings.

What is a trustee?

A trustee is a person (or corporate fiduciary like an investment firm or bank) who you name to be responsible for managing the assets held by your trust.

They manage the assets that you have placed in the trust, such as cash, stock or investment accounts or your home. They must make decisions about how to protect and grow the value of those assets.

They also oversee the distribution of those assets in the trust according to the terms you have set. This may be making direct payments to beneficiaries or allocating resources for specific purposes, like school tuition.

They must also maintain accurate records of all transactions and actions they take as well as periodic reports about the performance and status of its assets. The trustee may also be responsible for filing and paying taxes for assets in the trust.

How is a trustee named?

When you create a trust, you name the person in the trust document itself. You (the grantor) can designate either individuals, like a family member, or an institution, like a bank, to serve as trustees.

If you prefer to choose an individual, you should consider a few factors, including their financial acumen, trustworthiness and willingness to take on the responsibilities. It’s important to make sure the person you choose doesn’t have any conflicts of interest. This will help maintain trust in their decision-making.

If you don’t have any family or close friends who you believe have the financial knowledge needed to manage a trust, then you can choose to have a bank or trust company act as the trustee.

In the case that the trustee is unwilling or unable to serve, the court may appoint one based on the laws of your state and needs of the trust. This is why it’s important to choose someone carefully and discuss the decision with them.

How does a trustee interact with a conservator, guardian or power of attorney agent?

There is likely to be overlap with a trustee and a conservator, guardian or an agent under a power of attorney. Since a trustee is only managing assets held in a trust, they will likely need to coordinate with any of these roles that may need to access those assets.

For example, if you die and the guardian you named in your estate plan is now caring for your children, your trustee will manage any distributions from the trust pertaining to the care of your children. How so depends on the terms of your trust.

If you specify that your children receive a set amount every year from the trust, the trustee must coordinate that distribution with the guardian. If you specify that the trust pay your child’s tuition, that must also be coordinated with their guardian.

This scenario is similar for conservators or power of attorney agents. If a person is under conservatorship, the conservator would coordinate with the trustee to manage any distributions for the benefit of the person.

Similarly, a trustee may collaborate with a power of attorney agent to ensure alignment on any actions under the terms of the trust.

What is an executor?

Your executor is the person you name who is in charge of administering your probate estate after you’re gone. This person is responsible for collecting your assets, paying your debts and distributing your probate estate to your beneficiaries.

Because property passing through a trust or beneficiary designation would typically avoid probate, such property would not typically be managed by an executor.

How is an executor named?

You can name your executor in your Last Will and Testament. If you have a trust, you are able to name your executor in your Pourover Will.

While having a trust in place typically avoids the probate process, anything left outside of the trust may go through the probate process so it’s important to still have a will in place, and have an executor named.

As with other important estate planning roles, it’s important to choose your executor carefully. It should be someone that you trust to both follow the wishes you’ve laid out as well as navigate the probate process, including the financial and legal aspects.

It’s always recommended that you talk to the person before you name them to make sure they are willing and able to serve as your executor. While they may want to consult with an estate attorney and/or financial professional during the probate process, it’s important that they understand the responsibilities.

If you don’t name someone, the person refuses or the person you named dies, the court will appoint an administrator. This typically begins with a surviving spouse or other close adult family members.It’s important to review your will periodically to make sure the person you have named is still the right choice. You are able to update your will if you wish to name a different executor because you may no longer trust the person you originally named, if they are no longer living or if you just have a change of heart.

How does an executor interact with a conservator, guardian, trustee and power of attorney agent?

While managing the probate process, the executor will likely need to coordinate with various role, including a conservator, guardian, trustee and/or power of attorney agent. For example, if you were under a conservatorship when you die, your executor will likely need to work with your conservator to administer distributions and other management aspects the conservator was involved in.

An executor would coordinate with a guardian you named for your minor children when it comes to managing their inheritance and how it’s distributed.

If you have a trustee, meaning you have a trust in place, the executor is likely overseeing the probate process for assets that were left outside of the trust which the trustee is not managing. However it’s possible they will still need to coordinate on distributions, debt collections or other aspects of your estate. If a power of attorney was used prior to your death, your executor might consult with your agent about any ongoing financial obligations or other considerations that were in place and should be considered during the probate process.

Can a conservator, guardian, trustee, executor and power of attorney agent be the same person?

Yes, the roles of a conservator, guardian, trustee, executor and agent under a power of attorney can be fulfilled by the same individual. As noted above, naming an agent in a Financial Power of Attorney and/or Advance Health Care Directive may negate the need for a court to name a conservator—or streamline the process of naming one—should the situation arise.

However, when creating your estate plan you can decide that the trustee of your trust, the guardian of your children, the executor of your will and the agents you name in your FPOA and AHCD documents are all the same person.

For example, you could decide that your sibling is whom you want to take care of your children if you die, make financial and health decisions if you become incapacitated, manage your trust and over see any probate process when you pass.

If you do arrive at that decision, make sure you understand the nuances of each role and that you trust one person to do it all, should it become necessary. While having a single person assuming all those responsibilities could simplify things, there is the risk that it could be too much for them to take on which could create issues.

Whomever you decide to name in these roles, creating an estate plan is critical to ensure that your wishes are carried out by the people you prefer and to minimize the need for the courts to make those decisions for you.