Guardianship is something many people will never have to think about, but for those who are considering becoming a guardian or thinking about who they might name as a guardian in their will, understanding exactly how guardianship works can help guide the decision.
Guardianship is a court process when a probate court appoints someone to be the guardian over another individual — generally a minor or a person who is incapacitated — or over that individual’s finances. Guardians may also be called conservators in some states. Louisiana also uses the term tutor.
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What is a guardian?
A guardian is an individual appointed by the probate court to manage the affairs and/or finances of a person deemed unable to do so themselves, either because they are a minor or because they are incapacitated.
There are 2 types of guardianship:
Guardianship of the person
A guardianship of the person is created when someone other than a child’s parents (or, in the case of an incapacitated individual, someone other than themselves) is caring for the child and needs legal authority to act on their behalf. This type of guardianship is generally what people mean when they refer to a guardian for a child.
A guardianship may be needed because of the death of a parent but could also be the result of a child being removed from a parent’s care.
Guardianship of the estate
A guardianship of the estate involves managing only the child’s or incapacitated person’s assets — income, money or property. Guardianships of the estate are most commonly used when a minor inherits money or other assets, and these individuals are often referred to as financial guardians.
If the child has a surviving parent, a probate court will most likely appoint that individual to be the guardian of the estate. Note that the court may appoint the same person to be the guardian of the person and the guardian of the estate, but if they have reason to keep those two roles separate, they will appoint two separate guardians.
What does a guardian do?
Becoming a guardian of the person is a significant commitment. The guardian has all the same responsibilities that a parent would.
They are responsible for the child’s:
Safety and protection
Food, clothing, and housing
Physical growth and development
Emotional growth and development
Any other special needs
In most situations, the guardian will have limited access to any funds that may have been left to the child, which are intended to be provided to the child once they turn 18. If the guardian wants to use those funds for something related to the child’s care, they must request approval from the probate court. In general, guardians are expected to bear the expenses of “rearing” the child.
To avoid these limitations, the parent can create a trust and provide for more general power (or specific, limited power) to the trustee (person in charge of trust) for when and how assets can be used. Also language in a trust can delay when the child receives asset distributions — for instance, to a designated age or milestone events (graduation, marriage, etc.).
The will is still the appropriate place for naming a guardian, but a trust does not have to go through the probate process or be overseen by the probate court. The creator of the trust can provide direction about how the funds can be used, and the trustee has significant discretion once they control the trust.
For instance, if the trustee and the guardian are the same person, the trust could specify that the guardian should use funds from the trust for non-traditional educational expenses — like if the child wants to go to a special camp or ends up needing to attend private school or receive tutoring.
A further benefit is that the trust can designate one person to manage the assets and another to ensure expenses are paid for the children. Although this is not necessary, it can provide a form of informal supervision of these tasks by separate people who both have an interest in making sure things are managed correctly.
A financial guardian’s responsibilities are much less involved if they have not also been named as the guardian of the person. In most instances, they manage the child’s money and other assets until the child turns 18, though they have a fiduciary duty to do that with the same care they would manage their own finances.
Who will the court appoint as a guardian?
If the deceased named a guardian in their will or other estate planning documents, then that guardian may be appointed if it is in the best interests of the person for whom guardianship is needed unless there is some legitimate reason to appoint a different guardian (like the unavailability, incapacity, or unfitness of the original guardian — or the invalidation of the will).
If there is no valid will or if the will does not name a guardian, the court will appoint a guardian based on the best interests of the child. They generally choose a family member if one is available. A third party, such as a close friend, could petition the court to be made guardian.
If there are no family members available, the child would, in most instances, become a ward of the state and enter the foster care system.
Each state creates its own rules regarding probate and guardianship, but in most states, children 14 years of age and older have some say in who their guardian is. If the child’s choice is considered suitable, the court will give preference to their wishes.
Who needs a guardian?
Courts appoint guardians for minors who cannot be cared for by a parent (either because of death or other circumstances such as abuse or incarceration) and for adults who are incapacitated and can not manage their own affairs.
How do you designate a guardian?
If you have minor children and you do no other estate planning (though we recommend careful estate planning), draft a will and designate a guardian in the event of your death. None of us wants to think about that possibility, but tragedies do occur. Without any plans in place, families are left trying to figure out what their loved one would have wanted.
Need help appointing a guardian? At Trust & Will, we’re here to help you keep things simple. You can create a fully customizable, state-specific Estate Plan from the comfort of your own home in just 20 minutes. Establish guardianship for your children and gain peace of mind knowing you have a backup plan. Take our free quiz to see where you should get started, or compare our different estate planning options today!
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