Guardianship Basics

Chosen by a court or by being named in a legal document like a will, a legal guardian makes decisions for someone who can't decide for themselves. The person who cannot make decisions for themselves is called a "ward." The types of decisions that a guardian might make include:

• Giving consent to medical care or treatment or making medical decisions in general
• Making arrangements for purchasing necessities like food, clothes, cars, household items, and other personal items
• Organizing education
• Managing finances and bank accounts

The following is a summary of guardianship basics, such as when guardians may be appointed, how guardians are selected, and more.

When Guardians are Appointed

A guardianship requires that someone act on behalf of and protect a ward when they are incapable of acting for themselves. For that purpose, guardians always take on major decision-making powers that the ward would otherwise not be able to handle on their own.

For example, a court (often a probate court) may appoint a guardian when someone can't make decisions for themselves because of a mental or physical disability, illness, or addiction to alcohol or other drugs. Taking guardianship of an incapacitated ward is an important responsibility, so it's crucial to know what powers you may hold as a guardian.

Guardians may be appointed for children, as well. A court may be asked to appoint a guardian for the minor until they reach the age of majority if they have no other family member to make decisions on their behalf.

Selection and Appointment of Guardians

The selection of a guardian is an extremely important task. People with ties to the ward are preferred as proposed guardians by courts. These include:

• A person designated by the ward -- by legal document or otherwise -- to handle the ward's affairs, before the period of incapacity occurred
• A spouse
• Parent(s) or a relative
• A state employee or private person familiar with the ward and the incapacity at issue

Whoever the court chooses must be willing and able to perform the duties at hand and represent the ward's best interests. In selecting the guardian, the court considers the prospective guardian's character, history, physical capacity, and other relevant attributes. A potential guardian's limited education or financial resources are not disqualifying conditions.

The guardianship statutes of each state detail the specific duties, responsibilities, and powers of the guardian. These statutes should be examined in order to determine the standards that apply to each situation.

It is important to note that only a judge can appoint a guardian. Only with court approval can a person become an appointed guardian. Also, the party seeking the guardianship or that party's attorney must prepare a Court Order of Appointment for the judge to sign before the proposed guardian may take on guardianship authorities. The order appointing the guardian may be challenged in an appeals process, as well. This process varies significantly from one state to the next, so it's important to review your state's laws and procedures regarding such an appeals process. It's equally as important to consult with an attorney under such circumstances.

Removal of a Guardian

A guardian may be removed if a court determines that the ward no longer needs the services of the guardian. A guardian may also be removed when they have not provided adequate care for the ward or when it is determined that the guardian is guilty of neglect. Neglect can include using the ward's money or property for the guardian's own benefit and not obeying court orders. Upon court order, the guardian will be removed, and a new guardian (or temporary guardian) will be substituted in place of the original guardian.

If you want to become a guardian (or know someone who does), you'll need to gather certain documents prior to meeting with an attorney or filing petitions with your local court.

Types of Guardianships

There are a handful of guardianship types. It's important to understand the differences between them, if you are seeking a guardianship. They are as follows, generally speaking:

• Guardianship of the Estate (also sometimes known as a conservatorship): A guardian of the estate is tasked specifically with handling the financial and property-related decisions of a ward.

• Temporary Guardianship: Serving only a specific purpose, this type of guardianship expires immediately after that purpose has been served.
• Testamentary Guardianship: If a child's parents die and the parents have named a caregiver in their last will and testament, that caregiver is known as a testamentary guardian. They serve as such until that child comes of age, and they may be a family member or a family friend.

• Limited Guardianship: Intended to promote a sense of independence in wards requiring assistance in only certain areas of life. A limited guardianship gives the guardian powers related to areas of a ward's life that have been deemed beyond their ability to handle.
• Guardian Ad Litem: Typically an attorney serving in a volunteer capacity, this variety of guardian is court-appointed during a proceeding involving the interests of a child.

How Is a Guardianship Different From Conservatorship?

The terms "guardianship" and "conservatorship" are often used interchangeably. They may mean the same thing, depending on where you are located or a variety of other circumstances. But they can also mean different things in different settings, and they can vary from one state to the next.

In many states, a guardian can make a ward's daily and personal decisions, while a conservator holds the authority to make financial decisions for a person. (Above, for example, we addressed how a "guardian of the estate" can also sometimes be referred to as a "conservator.") In other states, however, the distinction between the two is made based on whether the ward is a child or an adult incapable of making their own decisions. When the ward is a child, they are subject to the authority of a guardian, while the adult is under the care of a conservator.

So, what really is a guardian versus a conservator? It all depends on the laws of the state where you are located, while it also depends on the circumstances of the ward, as well as the relationship of the ward to either their conservator or guardian. If you are in doubt concerning the distinction, it's important to check your state's laws and consult with an attorney.

Have Guardianship Questions? Contact an Attorney

Whether it be for a child or an adult, the selection of a guardian is an important decision not to be taken lightly. The well-being of a ward is a very serious matter. After all, a guardian will be managing most decisions, ranging from finances to healthcare. After getting up to speed on guardianship basics, you may want to speak with a qualified family law attorney to ensure that you're fully informed before going forward. It's important to seek legal advice when issues as complicated as guardianship arise.