What Everyone Needs to Know About Guardianships
By: Daniela Alonso
What is a Guardian?
A guardian is a surrogate decision-maker appointed by the court to make either personal and/or financial decisions for a minor or for an adult with mental or physical disabilities. After adjudication, the subject of the guardianship is termed a “ward”.
What is Guardianship/ Conservatorship? Is there a difference between the two?
Guardianship is a legal process, utilized when a person can no longer make or communicate safe or sound decisions about his/her person and/or property or has become susceptible to fraud or undue influence.
Depending on the state it can be called guardianship or conservatorship but they both refer to the same thing.
What are the Different types of Guardianship?
Guardianship of property: The authority to manage the finances such as property and income and income.
Not necessary if the person who needs guardianship guardian does not have assets or if they only have social security income with a representative payee in place.
Guardianship of person: The authority to handle personal health and lifestyle decisions of the ward.
An example of this authority is deciding whether a person needs to reside in an assisted living or long-term care facility.
Limited guardianship: The authority to make decisions for a disabled adult who can manage some but not all aspects of daily living.
For adults: Granted by a court under emergency situations, usually when the adult is in an urgent medical situation. Has a start and end state designated by the court.
For minors: legal guardians of minor children will appoint someone to be a temporary guardian in the parents’ absence until a long-term plan can be made.
Guardian Advocacy is a process for family members, caregivers, or friends of individuals with a developmental disability to obtain the legal authority to act on their behalf if the person lacks the decision-making ability to do some, but not all, of the decision-making tasks necessary to care for his or her person or property.
Do I need to designate a pre-need guardian?
Designating a pre-need guardian may be a part of a complete estate plan. Designating a pre-need guardian is a great way to ensure that in case of any emergency the person who you choose will be your guardian instead of whoever the court would appoint on your behalf. This ensures that the many important decisions a guardian makes once appointed are made by someone that you trust and know will truly have your best interest.
However, it is also important to try to avoid guardianship in the first place. You can avoid guardianship in most instances by designating a durable power of attorney and a health care surrogate in case you become incapacitated. Most adult guardianships happen because someone did not have these documents.
While many people may not think to have a guardianship plan it can be critical in emergency scenarios.
It is never too soon to plan.
What can happen without designating a guardian?
One example where a guardianship plan would have been extremely helpful can be seen with Brittney Spears and her conservatorship. It can be presumed that if she would have been given the choice to pick a guardian (called a conservator in the state of California) she would have designated someone else other than the guardian appointed to her by the court, under which she claimed to have experienced “guardianship abuse”. While this is not always the case with guardianships, it is an important case to mention, because it demonstrates an unfortunate situation that could have been avoided had there been a plan in place.
Further, other more common scenarios where having a designated guardian is critical is in the case of someone becoming incapacitated under emergency circumstances. It is seen all too often where parents must go through a long and arduous process to become the legal guardian of their adult children because their child became incapacitated either through an accident or severe illness. This situation can often be avoided by having a durable power of attorney and a health care surrogate in addition to a designation of a pre-need guardian just in case there is a dispute or some other reason a guardian is required. Precautionary planning can avoid this lengthy process and make it much easier for parents or any loved ones whose family member has become incapacitated to take the next steps in caring for them.
When should you consider taking action regarding guardianship?
It is never too early, act now.
Where can I start?
Lauren Richardson Law, PLLC