Guardianship is a legal process whereby the court appoints a person (typically a family member) to act on behalf of an individual who is legally unable to care for himself or communicate important personal decisions. Guardianships commonly involve minor children or adults with diminished capacity due to illness or age.
There are generally two types of guardians: (i) guardians of the person; and (ii) guardians of the estate. Guardians of the person are granted authority to make personal decisions on behalf of another—for example, decisions to ensure appropriate living conditions, meet educational needs, or direct medical treatment. Guardians of the estate, by contrast, are empowered to make financial decisions to properly manage, protect, preserve, and dispose of another’s assets. A single individual can be appointed as guardian of both the person and the estate, and the appointment can be either permanent or temporary.
Because guardianships limit an individual’s right to make her own decisions, the court is usually heavily involved throughout the process. In fact, not only does a guardian have fiduciary responsibilities to the individual, the guardian must also comply with court-mandated procedural requirements, such as filing petitions, attending hearings, taking inventories, and rendering periodic accountings. At times, the mantle of serving as guardian can seem quite burdensome.
On the other hand, there are many estate planning tools that can help alleviate these burdens. For example, living trusts, powers of attorney for healthcare decisions, and general durable powers of attorney for property are all useful tools that can limit, or sometimes even eliminate, a court-appointed guardian’s duties. Proper planning can ensure that the individual is properly cared for and that his desires are fulfilled, without unnecessary court entanglement.
Caring for loved ones who can’t care for themselves is a rewarding endeavor that should be arranged with the utmost care and with the assistance of experienced professionals.