Legal Guardianship Basics

A guardianship is a legal relationship. Either family court or probate court approves the relationship. There are several types of legal guardianships. They include:

• Guardianship of Property
• Temporary Guardianship
• Testamentary Guardianship
• Limited Guardianship
• Guardian Ad Litem

Some decisions that a legal guardian might make include:

• Giving consent to medical care or treatment or making medical decisions in general
• Purchasing necessities like food, clothes, cars, household items, and other personal items
• Organizing educational needs
• Collaborating with mental health providers
• Managing finances and bank accounts
• Managing the ward's property
• Managing real estate, if necessary
• Estate planning, if necessary

Appointed guardians must give an annual accounting or file an annual report of the ward's financial affairs. This may include an accounting of the ward's social security and personal property throughout that year.

The following is a summary of guardianship basics, such as types of guardianships or the appointment of a guardian.

Types of Adult Guardianships

There are different types of adult guardianships. Understanding the differences between these types is essential if you are seeking guardianship. Here are a few differences:

• Guardianship of the person: makes healthcare and welfare decisions on behalf of the ward
• Guardianship of property (or conservatorship): only handles the financial decisions for the ward, including protecting the ward's property.
• Temporary (Emergency) Guardianship: created for a specific purpose (usually an emergency), expires immediately after that purpose no longer exists or within a particular number of days
• Testamentary Guardianship: a caregiver named in the will of a disabled child's parents
• Limited Guardianship: promotes a sense of independence in wards who need help in certain areas of life; gives the guardian powers over areas of a ward's life that are beyond their ability to handle
• Guardian Ad Litem: A guardian ad litem is a person appointed by the court during a proceeding to protect the interests of an incapacitated person

When Are Guardians Appointed?

A guardian cares for the personal needs of the ward. Before appointing a guardian, a court will review proof of the ward's incapacity. For example, a court (family or probate) will issue letters of guardianship when a person has a developmental disability. Mental, physical, or intellectual disabilities or illnesses are common causes of incapacity.

With letters of guardianship, guardians have decision-making powers for the ward's personal needs. As the guardian of the person or minor, the guardian has a fiduciary duty to the ward.

Selecting a Guardian

Selecting a guardian is an important task. People with ties to the ward are often proposed guardians. These people include:

• A person designated by the ward, in a directive or power of attorney, to handle the ward's affairs before the period of incapacity
• A spouse
• Parent(s) or a family member
• Professional guardians
• A state employee or private person familiar with the ward and their incapacity

The person chosen by the court is usually willing and able to decide for the ward. The court will consider several factors in selecting a guardian. These include:

• Character
• History
• Physical capacity
• Any criminal background

Appointment of Guardians

Only a judge can appoint a guardian. The party seeking court approval should prepare a court order for the judge to sign. The order is appealable. This is to ensure due process in the proceedings.

Each state has its own appeals process, so it's essential to consult your state's laws and procedures. It is also important to consult an attorney to understand your legal rights.

In the guardianship of a minor, parental rights are not terminated. The guardian acts in the best interests of the child, but they do not replace a parent. Some temporary guardianships are for a short period. Legal guardians need the authority to make decisions about education and health care.

Removal of a Guardian

Only a court can remove a guardian. The court may dismiss the guardian through a court order if the guardian is no longer needed.

A court may also remove a guardian if they have not provided adequate care for the ward or if there is abuse or neglect of the ward. Neglect can include using the ward's money for the guardian's own benefit and not obeying court orders. Either a new or temporary guardian will replace the original guardian.

Guardians also owe a duty to their wards to act in their best interests. Failure to comply with this duty is also grounds for removing a guardian.

How Is a Guardianship Different From a Conservatorship?

Guardianships and conservatorships may seem similar, but these terms have some differences. These differences depend on where the petitioner files their petition.

In many states, a guardian only makes welfare decisions for the ward. These include healthcare decisions, opening bank accounts, and decisions related to personal needs. They may also consist of some financial decisions. By contrast, a conservator or guardian of property only makes financial decisions. A conservator is necessary for a person who can't make financial decisions.

In other states, the applicable term depends on whether the ward is a child or an adult. In these states, a child will have a guardian; the incapacitated adult will have a conservator.

Have Guardianship Questions? Contact an Attorney

Selecting a guardian is an important decision for a child or an adult. The well-being of an incapacitated person depends on a capable appointed guardian who will manage important decisions ranging from finances to health care. Guardianship laws and procedures are also complex and vary by state. 

With so much at stake, getting help from a legal professionnal is a good idea. After learning a few guardianship basics, consider getting legal advice from a qualified family law attorney.  An attorney can guide you through the legal process and help ensure the best possible outcome for all parties.