What Is Guardianship? A Comprehensive Look

When it comes to the topic of guardianship, what it means in a legal sense and how the process works can seem confusing. In essence, it’s a process during which you legally delegate someone else to act on a person’s behalf. Before seeking guardianship of any kind, it’s important to understand what it means, who qualifies and how to start legal proceedings.

Guardianship is the legal process of taking authority over someone else’s decisions. A guardian can be appointed for a minor or an adult. Conservatorship, another term that’s also commonly used to mean guardianship, is set in place when someone can’t care for themselves. In other words, a legal guardian (or ward) is appointed when a person is deemed to be unable to make safe or sound decisions about their own safety, whether it’s because the person is susceptible to negative influence or other reasons.

Since guardianship removes rights from an individual, appointing a ward is typically only considered after all other alternatives have been exhausted. Guardianship processes and laws will vary by state — in most cases, an examining committee consisting of medical and legal professionals will determine whether the person in question lacks the ability to care for themselves.

If a guardian is appointed, this person will have certain responsibilities such as monitoring financial accounts, medical treatments, give consent to release confidential information, make end-of-life decisions and report to the courts about guardianship status.

Guardianship Vs. Conservatorship: What’s The Difference?

Although these terms are sometimes mistakenly used interchangeably, there are differences between guardianship and conservatorship. Depending on the state, the legal proceedings will be different.

In general, the courts view guardianship as appointing a person to legally represent and manage affairs for a minor child. Conservatorships, on the other hand, happen when the ward handles affairs for an adult deemed incapable of handling their own affairs. Guardianship and conservatorship don’t always include the management of all of a person’s affairs — it can be restricted to financial or health matters.

For conservatorships, a ward may be appointed if an adult experiences an event that causes them to be incapacitated, such as an injury, accident, disability or old age.

Before someone is considered a guardian or a ward, they must meet specific requirements set forth by state law.

Guardianship Of A Minor

In the U.S., a person under 18 years of age is considered a minor. In some states, the age of majority can be as high as 19 or 21. Typically, a guardianship is established when both parents can’t provide a minor with a safe and secure environment – whether that’s because of death or other circumstances like a mental health concern. For instance, the court will appoint a guardian for a minor if both parents die and/or the child receives an inheritance (which can include insurance policy payouts) that is higher than an amount allowed under state statutes.

In a temporary child guardianship, a parent can have another adult handle affairs, typically for several months or as long as needed and if the child agrees (depending on their age). Doing so means parents can prevent the introduction of a court-appointed guardian since it's considered a private agreement. A temporary guardianship generally goes into effect once the document is signed.

A court-ordered guardianship, on the other hand, happens when a judge appoints a guardian for the foreseeable future. Those who want to be a court-appointed guardian will have to fill out the right set of forms before appearing at a hearing with a judge. Since it can be a complicated process, many people tend to hire an attorney who knows how to handle guardianship cases.

Guardianship of a minor typically ends when the ward turns 18 or reaches the age of majority in their state.

Adult Guardianship

There are several scenarios where someone may qualify for conservatorship or adult guardianship. If an adult becomes incapable of making responsible decisions, the court may give the ward some decision-making powers over areas where the person can no longer manage their needs. In this case, the ward may only have power over areas where the court has delegated.

When determining whether a person can no longer manage their needs, the court will judge whether the adult in question shows a lack of capacity to make sound decisions. More specifically, it’s not whether a decision is deemed irresponsible, it’s whether an adult is considered at risk to themselves or can no longer care for themselves.

For example, a person won’t be declared an incapacitated adult if they rack up credit card debt. However, if this person had a brain injury and may not be able to negotiate bills or pay them on their own, for instance, alongside other basic tasks, then a conservatorship could be put into place. A ward may also be appointed if an adult experiences an event that causes them to be incapacitated, such as an injury, accident, disability or old age.

The proceedings to petition a conservatorship are usually the same as one for guardianship. Depending on the state, you'll need to fill out the appropriate firms and appear at court at the ward's county of residence. The courts will then determine whether conservatorship is required and if so, whether the proposed guardian in question is the right fit.

There are several types of guardianship because there are different needs for various life scenarios. The right type for any given situation will depend on what the guardian will be responsible for, though types that are available will vary by state.

Temporary Guardianship

Temporary guardianship means a parent or a guardian is relinquishing the care of their child or an incapacitated adult for a predetermined period of time, typically for 6 months or less. Reasons for establishing temporary guardianship include parents becoming seriously ill or incapacitated for another reason.

This type of guardianship has a set end date. Temporary guardianship is determined when it’s found that a parent or guardian can no longer fulfill their duties of taking care of someone else. It can also be an agreement between the ward or parent even if they’re of sound mind. In general, temporary guardianship can be established outside of the courts, though there will need to be formal documentation in place.

Emergency Guardianship

Establishing emergency guardianship is what happens before appointing a guardian or ward, where the minor or incapacitated person's assets will be misappropriated or there will be some other form of extreme harm. The courts will establish emergency guardianship quickly in order to freeze assets and make it so that a guardian can make decisions until there's an approval of a final guardian.

During court proceedings, a petition will need to be filed, and in some states, a judge needs to appoint an attorney to represent the guardian. If approved, the guardian is responsible for stabilizing the minor's or adult's situation until the permanent guardian is appointed.

Guardianship Of A Person

Guardianship over a person means the ward is responsible for the care and well-being of the minor or incapacitated adult. The ward is legally responsible for making medical and personal decisions. Types of decisions include where the person goes to school, where they’ll live and how their health care will be handled.

Guardianship Of The Estate

This type of limited guardianship allows the guardian to be in charge of a person’s property or financial affairs. The guardian is only allowed to make financial decisions, though permission may be needed from the courts to sell or spend assets even if guardianship is established.

To become a guardian, a person needs to go through their state’s mandatory court process. Though specific steps vary by state, here’s what you can generally expect.

1. File A Petition

The first step is filing a petition where the proposed ward lives. Most people hire an attorney to help them fill out the petition correctly. There may also be a filing fee in addition to what you’d pay the attorney. Once the petition is filed, the courts will schedule a hearing date.

2. Attend The Court Hearing

Once a court hearing is scheduled, an attorney will be appointed for the minor or alleged incapacitated adult. There will also be a committee consisting of several medical and legal professionals who will examine the situation. They’ll file their reports, and the judge will call a hearing to determine whether a guardian is required. Depending on the specific court, the attorney may be required to speak, in addition to the proposed guardian, minor or alleged incapacitated adult.

3. Abide By The Judge’s Decision

The judge overseeing the guardianship hearing will make a final determination on the matter of guardianship. In minor guardianship cases, the judge does not have to honor the minor’s wishes or opinions.

After the guardianship is approved, the guardian may need to complete additional steps, such as establishing a separate bank account for the minor’s assets or attending an instructional training session to understand their duties and responsibilities.

If the court denies the original petition, the party that filed for guardianship can try again or appeal the case.

You can’t challenge a guardianship if you’re simply unhappy with the decision. Rather, you can challenge it if you feel the decision is unjust. To successfully challenge a decision, you need to prove that the guardianship was established because of a mistake, misrepresentation, or fraud. This is called filing a “Motion to Set Aside the Order” and needs to be completed within 6 months of the decision. If your motion is granted, the proceedings will start all over again. Otherwise, you can ask to end guardianship — again it’ll require evidence.

Guardianship is not to be taken lightly as it involves someone taking care of another person’s financial, medical, and overall well-being. It’s a good idea to draw up power of attorney documents to avoid future adult guardianship petitions. This can protect you to ensure that your wishes are carried out, and that your assets are used in the manner they were intended.