This article is not intended to provide you with legal advice. Should you seek legal advice, please consult an attorney. KTS would gladly recommend an attorney should you need one. It’s important to have an attorney take appropriate actions on your behalf and to avoid issues that may be discussed in this article.
The Basics of Legal Guardianship- A Brief Review
What is Guardianship?
The need for guardianship occurs when a person, for various reasons, cannot take care of their own personal or financial needs. Such an individual can be a minor or an adult and is considered to be at risk. In these cases, the court will appoint someone, a legal guardian, to make decisions for the person in need.
Guardianship, which may also be known as conservatorship, gives someone the legal authority over another person to make decisions about their personal or financial affairs. The court appoints the guardian through a legal process in order to protect a child or adult who is unable to care for themselves. According to the National Guardianship Association, the protected individual may lose considerable rights as a result and should therefore be a last resort. So, the pitfalls of guardianship must be weighted against its challenges.
State laws regarding guardianship vary across the United States. Not all states use the term guardianship. For example, some states use the term conservatorship, while others use custody. In addition, the statutes and court rules regarding minor and adult guardianship differ by state.
The type of court that appoints a guardian also varies by state and can include Family or Surrogate Court, Circuit, District, Superior, Probate, Juvenile, or other courts.
Since this is a legal process, you will need to obtain an attorney within your state who knows the laws to determine how you might be affected by the pros and cons of guardianship.
Who can be appointed a Legal Guardian?
A legal guardian is commonly a member of the protected individual’s family. If a suitable member of the family is not found, the court may appoint a public trustee or professional legal guardian. Professional indicates the organization or individual is paid a fee for their services, which include overseeing care by selecting and monitoring at-home care and other needed services.
Although bound by the same types of obligations, a child’s biological parent generally does not fall into the guardianship category. A court-appointed person can also be a friend, lawyer, or other person considered qualified by the court. Typically, the court will appoint a guardian or conservator who is at least 18 years old and be a U.S. citizen or legal resident.
The legal guardian is held to high standards and is expected to put the protected individual’s interests ahead of their own. In some states, like New York, if you have a criminal record, you may not be appointed.
Guardians are referred to as fiduciaries whose duty it is to represent another’s personal property and/or financial interests with honesty, trust, care, and confidentiality. In addition, guardians also have a duty to the court in addition to the individual they are protecting. Other examples of fiduciaries include trustees, VA fiduciaries, and agents under power of attorney.
What individuals may need a Guardian?
A person who is unable to make sound decisions for themselves or their property may need a court-appointed guardian. The person in need of protection is called “ward” by the court and will be appointed a legal guardian to watch over and make decisions on their behalf.
Such an individual may be a minor child or elderly person, be an incapacitated adult (e.g., after a stroke), developmentally disabled adult, or someone with Alzheimer’s. For example, a senior with the onset of dementia that becomes progressively worse would need protection. Minor children who have lost a parent due to abandonment or death would also be granted a guardian.
Seniors are particularly susceptible to scammers and criminals who act as financial advisors with the intent to exploit defenseless individuals. They may also be vulnerable to risks like undue influence and need protection. In these instances, the legal process could begin whether or not the ward (person needing protection) gives their consent.
Here are the four cases that typically dictate the need for a guardian:
- Minor individual (under 18 years of age or under your state’s age of majority)
- Elderly or sick individuals considered incapacitated
- Developmentally disabled adult
- An adult considered incompetent
What are the responsibilities of a Guardian?
As a court-appointed individual, the legal guardian will have certain responsibilities to aid in the protection of the person and/or their finances. Here is a list of what they may be responsible for:
- Make decisions on day-to-day necessities like food, clothing, grooming, housekeeping, and transportation
- Monitor and consent to the administration of medicines, medical care, and dental treatment
- Monitor and consent to special needs that may include a nursing home
- Make decisions about life support and end-of-life
- Monitor and consent to various non-medical services (e.g., counseling)
- Permit the release of confidential information
- Decide and monitor living arrangements and residence
- Manage financial affairs including money, investments, real property, taxes
- Handle banking and bill paying
- Help with obtaining and continued receipt of government benefits
- Provide status reports as required by the court annually or as instructed
- Protect against legal guardian scams and other attempts to defraud or harm the individual
What are the types of Guardianship?
The responsibilities of a guardian vary by state and depend on the needs of the protected person. For example, a guardian to an elderly, disabled individual differs from the guardianship of a healthy minor.
Also, how much authority is extended to the guardian and for how long can vary. For example, in the case of a limited adult guardianship, the types of decisions that can be made on the protected individual’s behalf may not include selling real estate.
Appointments may be given for a short period of time such as in a case of an emergency. Others may have full guardianship to manage the personal and financial affairs of an incapacitated elderly person. This may require a long-term appointment as needed for the individual’s welfare.
An attorney should always be consulted when seeking a guardianship arrangement.
The legal process of guardianship for a minor may involve more than one adult to care for someone under the age of 18 (or under your state’s age of majority). Parents who have died, are disabled, mentally incapacitated, abandoned their child, or are no longer capable of caring for their children, will warrant the court’s decision to assign guardianship. The court order will appoint the guardian with parental-type authority even if someone is named in the parents’ will.
Guardianship of a minor typically includes making decisions on necessities for the minor’s wellbeing like food, clothing, and making decisions on healthcare, school, and more. The guardianship of a minor usually ends once the minor becomes an adult according to your state.
There are cases in which guardianship is appointed beyond childhood due to serious and severe medical issues that render someone developmentally disabled. Such conditions may be established by the court as rendering the individual incapable of making decisions on their own behalf.
In addition, the guardian caring for the day to day necessities may not, however, be the same person who acts as a trustee or conservator relating to the expenses of the child’s upbringing.
An adult who can no longer care for their basic needs and manage their personal welfare or finances is considered a ward to the court and will be appointed a guardian. In this case, due to various conditions like Alzheimer’s, disability, declining elderly individuals, and other circumstances, the individual can no longer take care of themselves personally or handle their own financial matters.
Depending on the situation, the guardian may be limited to handling financial or medical decisions. Or they may be given full responsibility for both the individual’s personal welfare and financial affairs. In some cases, more than one guardian may be appointed by the court with a specific area of responsibility.
Guardianship of a Person:
If you are appointed by the court to be a legal guardian over an individual, you are given the responsibility to decide on their basic necessities like food and clothing. In addition, you will be responsible for decisions on their living arrangements, medical treatments and appointments, transportation needs, and other day-to-day decision making.
Guardianship Over Property:
In some cases, a guardian may be assigned duties to oversee and make decisions on someone’s estate. Such decisions must be in the interest of the protected individual (ward). You will be responsible for making appropriate decisions on property, income, investments, bill paying, protection of property and finances, and other financial concerns. The court will require status reports and the protected person’s funds are to remain separate from the guardian’s accounts at all times.
It’s important to note that a guardian may be appointed over both the person and property. To learn more about these and other types and extents of guardianship, contact your attorney.
Are there any alternatives to Guardianship?
Depending on the circumstances, there may be other alternatives that your attorney may recommend. The court and laws in your state may dictate what is appropriate for your needs or that of a loved one. Some of the other legal remedies may include healthcare surrogacy, trusts, powers of attorney, case/care management, living wills, and supported decision making (SDM).
Someone with disabilities may choose to use SDM by selecting trusted family members, friends, professionals, and others to help them make proper decisions. These chosen supporters function as advisors to help support an individual to keep their decision-making capacity.
Seek legal advice.
Understanding the ins and outs of guardianship is complex. In addition, the court rules and laws regarding this legal process can vary widely based on state and county. Be sure to contact an attorney or a professional elder law advocate to learn what procedures are best for your situation.
About the author, Carlos Nath:
Carlos Nath is the Senior Trust Advisor with KTS Pooled Trust. As a seasoned professional with over four years of experience in the New York pooled trust space, Carlos has helped thousands to enroll and set up their accounts with KTS. He is proficient in understanding the Medicare process and provides assistance in clarifying what clients may need. Previously, Carlos worked with a Medicaid consulting firm as an advisor who helped clients who were seeking Medicaid assistance.