Why The Need For Guardianship?

When circumstances arise in which an adult is unable to manage their day to day affairs, or a minor child’s parents are no longer able to provide for their care a guardianship may be established. Let’s take a look at what guardianship is, and what it is not, the different types of guardianship, and the reasons that a guardianship may be necessary.

What Is Guardianship?

Guardianship is the official term used to describe the granting of legal authority to make financial and legal decisions on behalf of another person. The entity who is granted authority by a court of law to make financial and legal decisions for the benefit of another person is referred to as the guardian. The individual who is subject to the guardianship may be referred to as the protected person, or the ward.

Why Is Guardianship Needed?

Generally speaking, adults are able to manage the important details of their lives, and the parents of minor children are responsible for handling the details of the child’s life until the child reaches legal adulthood.

However, a guardianship may be needed in situations where an adult is either temporarily or permanently unable to manage some aspect of their important affairs due to mental or physical incapacitation. Children whose parents are unavailable or unable to manage their child’s important affairs may also require the establishment of guardianship until they reach legal adulthood and become able to manage their own affairs.

Types Of Guardianship

There is not a blanket, one size fits all guardianship policy. As a basic rule of thumb, the courts will make every effort to limit a grant of guardianship to manage only those details which the protected person, or ward, is unable to manage on their own. The court will generally strive to preserve as much of the protected person’s autonomy and freedom as possible

There are three common types of guardianships that take into account the variety of needs balanced against the protection of autonomy and freedoms of the protected person, or ward who is subject to the guardianship.

Guardianship Over The Person

Guardianship over the person is granted in cases when the protected person, or ward is unable to properly manage affairs related to basic personal care, medical care, and establishment and maintenance of adequate housing. If the protected person, or ward is a minor child, a guardianship over the person may involve providing for adequate education for the child.

Guardianship over the person may include:

• Determining where the protected person, or ward, will reside
• Establishment and maintenance of adequate housing which meets the specific needs of the protected person, or ward
• Providing for adequate home care for the protected person, or ward if needed
• Providing for adequate housekeeping care and/or a personal assistant for the protected person, or ward if needed
• Determining if the protected person, or ward should have a Driver License or the ability to travel free of supervision
• Providing for adequate healthcare, managing medical office visits, obtaining medications, and assuring that any required medical orders and treatment plans are being followed properly
• Providing for the adequate education, and managing any school related activities of protected persons, or wards who have not yet reached adulthood

Guardianship Over The Estate

Guardianship over the estate is granted in circumstances where the protected person, or ward is able to adequately manage their personal affairs but may require assistance or protection for management of their financial affairs.

In the case of a minor child, guardianship over the estate may be granted when the child has received an inheritance or settlement. The court will appoint a guardian to protect the financial interests of the minor child until the child reaches legal adulthood, and becomes legally able to manage their own financial decisions.

When guardianship over the estate is granted, the financial assets of the protected person, or ward may be held in a protected status account requiring the guardian to petition the court for approval before spending any of the protected person’s assets, or making any financial decisions which were not explicitly established and pre-approved within the original guardianship.

Guardianship Over The Person And The Estate

Guardianship over the person and the estate is the most comprehensive of the guardianship types. As it sounds, this type of guardianship combines both guardianship over the person and guardianship over the estate and essentially grants the guardian control over, and responsibility for nearly all aspects of the protected person’s, or ward’s personal care, health care, education, and financial affairs.

Guardianship Considerations

As mentioned above, the courts will carefully weigh all of the individual circumstances and will generally attempt to limit guardianship to only those rights and responsibilities for which the protected person, or ward is unable to adequately provide, or manage, for themselves due to age, or diminished mental faculties.

If you have become concerned about a loved one, and believe that a guardianship may be needed either now, or at some point in the future, please reach out to Rebecca Valk, or another qualified guardianship attorney. A guardianship attorney will possess the knowledge and experience required to help you navigate the often complicated and confusing process of establishing a guardianship for your loved one, from determining the specific needs to presenting the case to a judge to obtaining a grant of guardianship. Contact us today, we are here to help!