Guardians may be assigned to a minor or incapacitated person who needs a competent adult to care for them and make decisions for them.
Updated November 24, 2020|7 min read
Table of Contents
Guardians or conservators have legal authority to make important decisions on behalf of someone else, called the ward
You may need to petition a court to obtain legal guardianship over a person or estate
It’s possible to designate a future guardian, for yourself or a child, through a strong estate plan
You can petition to become an eligible person's guardian if you go through the courts
Guardianship is a process that grants someone, the guardian, the legal right to make personal, financial, and perhaps medical decisions on behalf of someone else, the ward. Guardians may be assigned to minor children, people with disabilities, and adults who are elderly or incapacitated. A guardian may also be assigned only to care for the ward’s property, like when a young child inherits real estate.
A guardianship, sometimes called a conservatorship, can be voluntary or involuntary, permanent or temporary. Someone may also receive full or limited power over their ward’s affairs. Regardless, all guardians have a fiduciary duty — a legal obligation to put the ward’s best interests ahead of their own.
Someone can only become a legal guardian if they are properly appointed by a court. Even if the ward consents to the guardianship or if a guardian is named in a will, it takes court-issued forms to make the guardianship official. You can plan ahead for guardianship, either for yourself or your child, by creating a solid estate plan.
Someone may be appointed a legal guardian of a minor when the current parent is unable to perform duties because of any number of issues, like alcohol or drug abuse, physical or mental abuse, or impending incarceration. Parental rights are not necessarily terminated in cases where guardianship is established while the parents are still alive; the parents may still be able to contact the child depending on the court’s decision.
Legal guardianship is not the same thing as foster care or child welfare services, which provide a temporary home for minors whose current environs are unsafe for their well-being. Guardianship also isn’t the same as custody, though they are similar. Custody gives someone parental rights over a child, while guardianship only gives someone the right to care for another person (whether a child or adult). Guardianship may also be appointed for an estate instead of a person.
There is also a type of guardianship called subsidized guardianship, which your state may offer as a permanent placement option instead of foster care.
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The guardian’s main responsibility is to take care of the dependent just as their parents would have, by fostering physical and emotional growth and providing safety and protection. The guardian is obligated to act in the best interests of their ward, and perform basic responsibilities like providing housing, clothing, and food. They also arrange for the minor’s education and authorize medical care on their behalf.
As a rule, legal guardianship ends when the dependent reaches the age of the majority and becomes capable of making their own decisions.
Probate guardianship or testamentary guardianship is a term used to refer specifically to guardianship of a minor that results when their parents pass away. This type of guardianship can be assigned by a court during probate of the deceased parents’ estate or through the parents’ last will and testament.
If you have minor children, you can nominate a guardian for them in your will to prevent the courts from appointing someone who you may not know or like. (You can now use Policygenius to create a customized will and choose your child's guardian.)
Someone may also establish a conservatorship strictly for a minor’s property. When a minor child receives an asset, like an inheritance, they may not be able to legally hold onto it (for example, when a grandfather passes away and leaves a real estate property to his 10-year-old grandchild).
If the minor’s parents are still alive, they will typically be the guardian of the estate and care for the property. If the child’s parents are deceased, the court may appoint someone as the guardian of the estate to fulfill this responsibility. A guardian for an estate must manage the asset until the child comes of age. This could include maintaining the property, collecting any rent payments, or paying property taxes. The guardian of the estate can be different than the guardian of the person.
People with developmental disabilities may need a guardian, as could adults who become unable to care for themselves because of a physical or mental condition. Adult guardianship isn’t just for a senior who makes one foolish decision. When a court deems that the person cannot make sound personal and financial decisions on their own, that person effectively loses many of their rights to the guardian. Someone under guardianship may not be able to get married, obtain a driver’s license, or possess a firearm.
A court may define an incapacitated person as someone who cannot perform some “activities of daily living,” which typically includes eating, bathing, grooming, using the toilet, and other day-to-day activities.
The major responsibilities of the guardian (or conservator) of an incapacitated person are to:
Manage the ward’s medical treatment, including long-term care decisions
Make end-of-life decisions, like whether the ward should continue life-support
Sign contracts on the ward’s behalf
Execute financial decisions, like buying, selling, and managing property
Receive government benefits, like Social Security payments, by acting as a representative payee
You must go through a court process to become someone’s guardian. Even if the person has already consented to you becoming their guardian, you must get a court order for your guardianship to be legal.
First, you have to file a petition in court and pay the filing fee. The cost to file for guardianship could be over $1,000 in some places (it may be possible to qualify for financial assistance). The exact petition forms you need may differ based on whether the ward agrees to the guardianship (or whether the ward’s parents agree, if the ward is a minor). The guardianship proceedings may also happen in different courts — superior court, probate court, surrogate court, family court, etc. — depending on the state and who the ward is.
After you file a petition, the court will set a hearing date (which could potentially be months in the future). At the hearing, the court will ask questions to all parties involved in order to determine whether it should grant the guardianship petition. Usually the proposed guardian and ward (or their parents, if the ward is a child) must agree to the guardianship. If the ward is an incapacitated person or a person with developmental disabilities, the court will ask for proof that this person cannot make their own decisions and would benefit from a guardian.
Further reading: How to make a valid will in your state
For an underage ward, the court may appoint someone called a guardian ad litem to represent the minor’s interests in court, since they may not be able to protect their own best interests. The guardian ad litem tends to be a lawyer or mental health professional, like a social worker, who can understand and investigate the ward’s circumstances. A guardian ad litem is especially common in situations where the child’s welfare is at stake — such as during some divorce proceedings or in the case of potential abuse or neglect.
Most commonly, prospective guardians of a minor must be at least 18 years old and mentally competent. They must not have a criminal history, although some states consider certain crimes more disqualifying than others. The ward may be able to reject the guardian or make their own suggestion as to who it should be, but the judge doesn’t have to consider the ward’s opinions.
Every state has their own set of legal requirements to become a guardian, so speak with an attorney for legal advice regarding the law in your state.
Data from the CDC shows that 40% of people aged 65 and older have a disability, so it’s important to plan for possible incapacity or mental illness. Guardianship may not be necessary if you have planned ahead and filled out some legal paperwork. You can speak with an attorney who specializes in elder law for more information, but the following are some notable planning measures:
Establish durable power of attorney
Make a living will
Open an irrevocable trust
Get disability insurance
POA forms give someone legal authority to act on your behalf. You can create a power of attorney for financial decisions and another for medical decisions (also known as a health care proxy). In particular, having a durable POA can significantly reduce the likelihood of a court-established guardian.
This type of advance directive contains your preferences regarding end-of-life care, including when you would want to be taken off life-sustaining treatment. Medical professionals and anyone else you designate to handle your care (like through your powers of attorney) should try to follow the terms you set in your living will.
If you place money or property into an irrevocable trust, a guardian cannot access those assets or change any details of the trust. That makes irrevocable trusts a safe way to pass on assets, even if you become incapacitated.
A disability insurance policy can’t assign guardianship, but it can replace any lost income so that you and your loved ones can continue paying your bills. Disability insurance can cover cases of temporary or permanent disability, and it can fill in the gaps left by most employer-sponsored disability insurance.
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