A guide to guardianship

Use estate planning documents to choose a guardian for children or grant someone the legal right to act on your behalf.

Elissa

Elissa Suh

Published December 23, 2019

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KEY TAKEAWAYS

  • A guardian or conservator has legal authority to make important decisions on behalf of someone else, called the ward

  • Guardianship is overseen by the court

  • A guardian is responsible for an individual and a guardian of an estate is only in charge of assets; one person can fulfill both duties

A guardian is a person with the legal authority to make personal and financial decisions on behalf of someone else, called the ward. Guardians may be assigned to young children, incapacitated adults, and people with disabilities to care for their well-being, their property, or both. The guardian position and the process of obtaining it is called guardianship or conservatorship.

Guardianship can be voluntary or involuntary, and full or limited in power. Sometimes the guardian may be appointed by the court (such as when a parent dies and does not name a guardian for their child in the last will and testament). Whether the ward is a child or an adult, the responsibilities of the guardian remain the same; guardians are fiduciaries, and are obligated to put the ward’s best interests ahead of their own.

You can plan ahead for guardianship, whether for a child or yourself, by creating solid estate plan, which can help you avoid guardianship or to at least have a say in who becomes a guardian. We’ll discuss how different types of guardianship, how they work, and more.

In this article:

Establishing guardianship

No one can be appointed guardian without first going through the legal court process. If you want to establish guardianship over someone, you have to file a petition in court and pay a filing fee. The petition forms may be different, based on whether the ward (or their parents, if the ward is a child) agree to the guardianship.

Guardianship proceedings may happen in different courts (superior court, probate court, surrogate court, family court, etc.), depending on the state and whether the ward is a child with or without deceased parents, a disabled person, or an incapacitated person.

The court will set a hearing date and ask questions to all parties involved.

Becoming the guardian for an incapacitated person

If the ward is an incapacitated person or someone with developmental disabilities, the court will ask for proof that this person cannot make their own decisions and would benefit from a guardian.

Becoming the guardian for a minor

For an underage ward, the court may appoint someone called a guardian ad litem to represent their 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. This usually happens when the child’s welfare is at stake, such as during divorce proceedings or in the case of potential abuse or neglect.

When the guardianship is for a minor, they may be able to reject the guardian or make their own suggestion as to who it should be. In general, the judge may consider the ward’s opinions, but doesn’t have to.

Every state has their own set of legal requirements to become a guardian. Most commonly, the guardian of a minor must be at least 18 years old and mentally competent. They must also not have a criminal history, although some states consider certain crimes more disqualifying than others. You can speak with an attorney for more legal advice regarding the law in your state.

Guardianship for minors

Most people think about guardianship as it’s established through the juvenile court system, such as when a parent is unfit to care for their child. 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.

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. However, foster care might result in a more permanent appointment of a guardian for the minor.

Guardianship for minors with deceased parents

Sometimes a guardian must be appointed for a minor child because the parents are no longer alive.

Probate guardianship or testamentary guardianship is a term used to refer specifically to guardianship of a minor that results when their parents pass away.

If you have minor children, you can nominate a guardian for them in your last will and testament to prevent the courts from appointing one for you like we discussed before. Guardianship ends when the dependent reaches the age of the majority and becomes capable of making their own decisions.

Duties of a guardian

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.

Guardianship of a minor’s estate

Guardianship may also be established 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. A guardian of the estate must manage the asset until the child comes of age. This might include maintaining the property, collecting any payments, or paying taxes.

If the minor’s parents are still alive, they will typically be the guardian of the estate and care for the property (for example, when a grandfather passes away and leaves his real estate property to his ten year-old grandchild). But if the child’s parents are deceased, the court may appoint someone as the guardian of the estate to fulfill this responsibility. The guardian of the estate can be different than the guardian of the person.

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Guardianship for elderly or incapacitated individuals

People with developmental disabilities may need a guardian, as would an adult who becomes unable to care for himself because of a physical or mental condition. 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.

Guardianship is a serious matter — it isn’t just for an older senior who makes one foolish choice. When a court deems that the person cannot make any sound personal and financial decisions on their own, that person effectively loses many of their rights to the guardian. Someone under guardianship may not even be able to get married.

The major responsibilties 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

The guardian might also be able to restrict the ward’s right to a driver’s license or possess a firearm.

How to plan for elderly guardianship

If you are an aging senior, there are measures you can take to plan for future incapacity or mental illness. Guardianship may not need to be established 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 here are some notable planning measures:

  • Durable power of attorney: These forms give legal authority to someone to act on your behalf. There is one for financial decisions, and another for medical decisions (also known as a health care proxy), which outlines your medical care. Having these documents in place can be significant in reducing the likelihood of a court-established guardian.

  • Living will: This advance directive contains your preferences regarding end-of-life care, including when you would want to be taken off life-sustaining treatment. The agent or your guardian should try to follow the terms you set here.

  • Joint checking or savings accounts: The joint-owner will have access to your money, which might be a safeguard against an unscrupulous guardian appointed by the courts.

  • Irrevocable trust. The trust maker cannot modify the terms of an irrevocable trust, which means a guardian of the trust maker also wouldn’t be able to edit the trust details That makes irrevocable trusts a safe way to pass on assets, even if you become incapacitated.

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