There are a number of reasons why a guardianship action may be appropriate. A guardian may be appointed by the court to oversee the legal and financial affairs, and/or the personal care of (1) a child who is under 18 years of age, or (2) an adult who is not able to manage his or her own affairs because of a physical or mental incapacity or disability. The person who is the subject of the guardianship is referred to as the protected person or ward.
A guardianship may occur with the agreement of the relevant parties, which means the guardian is appointed at the request of the protected person or if a child, the child’s parents. On the other hand, a guardianship may be ordered even over the objection of the protected person or if the protected person is a child, the child’s parents. In such cases, there may be a dispute about whether the alleged incapacitated person is, in fact, in need of a guardian; and if so, whether the petitioner is the appropriate person to serve in that role.
Once a guardian is appointed, the guardian is responsible for looking after the interests of the protected person, and must report to the court regularly with information about the status of the protected person and his or her financial affairs.
A guardian may be appointed to serve as guardian “of the person” of a protected person, guardian “of the estate” of a protected person, or both. If a guardian of the person and estate are both required, these roles may be filled by the same person, or by separate guardians.
A guardian of the person is appointed to protect and be responsible for the physical care of a protected person, and to provide for the protected person’s day-to-day maintenance using the protected person’s funds. Maintenance includes providing food, shelter, clothing, health care and other necessities. It includes making decisions about medical treatment and other professional services the protected person may require. For children, it includes arranging for the child’s education as required by law. Only a natural person (not a bank, agency, or other company) can be appointed as a guardian of the person. Court approval for certain actions is required or advised. For example, prior to relocating a protected person to a residential care facility, court approval should be obtained.
A guardian of the estate is appointed to manage the property and financial assets of the protected person, for the protected person’s best interests. A guardian must absolutely refrain from co-mingling the protected person’s assets with the guardian’s assets. The guardian of the estate must:
- Pay all debts owed by the protected person;
- Collect all money owed to the protected person;
- Settle and adjust any assets received from an estate;
- Deposit all funds into an account in the name of the guardian as fiduciary;
- Protect, preserve and invest the protected person’s funds not needed for current obligations according to legal guidelines;
- File or defend lawsuits on behalf of the protected person to protect his or her interests;
- File an inventory at the inception of the guardianship;
- File accounts of the protected person’s estate with the court every two years;
- Seek court approval for expenditures or transfers; and
- File income tax returns and pay taxes for the ward.
Guardianships Over Children
If a parent is unable or unwilling to care for a minor child, the parent(s) can agree to another adult having guardianship of the child. Even if the parents do not agree, a court may order guardianship by another adult to ensure that the needs of the child are met. While the guardianship is in effect, there may be court orders for the child to have continued contact (parenting time) with the parents. There may also be orders for the parents to pay child support to the guardian. A guardian of a child will generally serve as guardian “of the person” and “of the estate” of the child, meaning that the guardian is responsible for the child’s care and well-being, in addition to being responsible for handling the child’s finances.
The guardianship of a child may be terminated upon the agreements of the guardian and the parents, and approval of the court. If the guardians oppose the termination of the guardianship, the parents will have the burden of showing that the reason for the initial establishment of the guardianship has ended, and that it is in the best interest of the child to terminate the guardianship.
Guardianship of a child is not necessary for certain temporary situations. For example, a health care authorization form can be signed to allow another adult to temporarily authorize medical care for a child in the absence of a parent or custodian. Also, a child may be enrolled in the school district of a non-parent adult without having a formal guardianship established in some cases. In those cases, the school will require that a form be signed indicating that the child lives with that person for reasons other than in order to be eligible to go to school in that district.
Guardianship Over Adults
In a proceeding to establish guardianship over an adult, it must first be shown that the adult is incapacitated and in need of a guardian. A physician’s statement will be required, and more extensive evidence may be required if the alleged incapacitated person disagrees with the need for a guardianship. A guardian of an incapacitated adult may be a guardian of the person, a guardian of the estate, or both.
If it is established that the protected person is, in fact, incapacitated, the next question is who should fill the role of guardian. If the protected person executed a power of attorney, there is a statutory preference for appointed attorney in fact to serve as guardian, should the need arise. The statutes also give preference to certain family members.
To discuss whether guardianship is appropriate in your particular situation, or to compare guardianship with other options, feel free to call Stafford Law Office, LLC for a consultation.
Disclaimer: This summary is not intended to be comprehensive, and should not be construed as legal advice for your particular situation. Nothing in this website is intended to serve as or substitute for legal representation.