Sometimes a child’s or adult’s well-being may be benefit from different care. If this is the case, a guardian can be appointed to provide a more stable environment.
Guardianship typically involves granting someone decision-making authority for a minor or an adult.
Let’s take a look at what you might need to know about guardianship. Just note: Law and court rules can vary by county and state, so you may want to work with a local family law attorney for guidance.
What is guardianship?
A guardianship is a legal role given to a person who will manage the personal activities or resources of another person who’s unable to do so on their own.1 This role is typically granted to someone to help manage a child’s welfare when their parent(s) can’t properly take care of them. A guardian can be a family member, friend, lawyer, or other professional.2 In most states, anyone who’s 18 years of age or older can become a guardian.3
It’s important to note that guardianship is different from custody. Custody is the time legally granted to a parent to take care of their child, but guardianship is when caretaking is legally granted to a non-parent.4
A court may appoint a guardian for an adult, known as a conservatorship, due to their age, disability, or mental capacity. Conservators usually only make decisions about finances, while guardians make overall personal care decisions, which can include finances.
The goal of a guardianship
A guardian makes decisions in the best interest of a person — also known as a ward — until they can do so for themselves. If the courts find that a guardian isn’t acting in the ward’s best interest, they may remove that guardian and appoint a new one.1
A relative may establish guardianship for a minor (instead of adoption) to help maintain community, important relationships, and cultural ties for a child if the alternative is to be placed in foster care.5 A guardianship may end when the child is no longer a minor, if a judge terminates it, or in the event of the ward’s death.6
Types of guardianship
There are three main types of guardianship: guardianship of the person, guardianship of the estate, and general guardianship.7 There are also different levels of guardianship:3
- Full: This grants all decision-making authority, depending on the type of guardianship, to the guardian.
- Limited: With limited guardianship, only certain decisions are granted to the guardian.
- Co-guardianship: Two people are allowed to make all or limited decisions.
- Short term: Legal responsibility is granted for a specific amount of time. You may be able to get a temporary guardianship without court approval in certain state-specific circumstances.8
- Guardian ad litem: This is a guardian granted by the court to represent a ward during legal proceedings.
Guardianship of the person
A guardianship of the person grants a guardian responsibility over the care, well-being, and protection of a ward. This type of guardian may have decision-making authority over things like housing, education, finances, medical care, and end-of-life decisions.6,9
Guardianship of the estate
A guardianship of the estate grants a guardian responsibility over the management of property, estates, and business affairs. These responsibilities can include protecting assets and property, receiving income, making disbursements, or obtaining court approval before selling assets.9
Who might need a guardian?
There are some situations when appointing a guardian may be beneficial, including when individuals are:3
- Minors of deceased parents: If a minor’s parents are deceased, a legal guardian may be appointed to provide adequate care.
- Minors of parents who have fallen ill, are incarcerated, or have decreased mental capacity: If a minor’s parents become unable to care for them, whether temporarily or permanently, a legal guardian may be appointed.
- Children with disabilities: A parent’s natural guardianship expires when their child turns 18. But if a child with disabilities is unable to make the best decisions for themselves as an adult, a parent may establish a guardianship that can continue when natural guardianship expires.
- Adults with a disability or decreased mental capacity: If an adult becomes unable to properly care for themselves, a legal guardianship for adults with disabilities or decreased cognitive function may be established. This way, a guardian can make decisions for the betterment of their health, well-being, and finances
Guardianship and estate planning
One way to ensure your child or dependent has the best life possible if you’re unable to care for them in the future is through estate planning.
By appointing a guardian in your will, the court will understand them as the legal caretaker if you pass away. This can help ensure the person, or people, you choose to take care of your dependent(s) has a better chance of being appointed by the court. If you don’t appoint a guardian, the court will likely do this on your behalf — and it may not be who you would have chosen.
You can also set up a trust for your children so they receive their inheritance when you specify, rather than automatically when they become 18. A trust helps ensure your decisions can be carried out in the event of your death.