Nothing is more important than planning for the care of your loved ones after you’re gone. Yet all too often, it’s something many of us avoid. Whether you’re making decisions about your own children or for someone else you’re responsible for, like an elderly parent or a dependent with disabilities, you’re not alone if you feel like you’re about to make the biggest decision of your life.
Learning all you can about guardianship will help you feel confident in your decisions. In this guide, we’ll cover everything you should know about the importance of guardianship. You’ll learn:
What is Guardianship?
Guardianship is the legal process of establishing who will step in should you become unable to care for your children or any other person you care for. This could include an elderly parent or other family member, or an adult who is unable to care for themselves. Once a legal guardian steps in, under whatever the circumstances are, he or she would assume all the responsibilities of care. Food, housing, education, medical and other basic needs would be provided by the guardian. Depending on the state you live in, the term “guardian” may be referred to as “conservator” or “tutor.”
A guardian’s responsibilities will depend on if they are a Guardian of the Person or a Guardian of the Estate.
A Guardian of the Person
would be responsible for custody and care of the person.
A Guardian of the Estate
would be responsible for managing finances. Some states refer to this as Conservator. Specifics or instructions for this can be provided in your Estate Plan.
A legal guardian has a big role to play, so it’s important to inform yourself of what legal guardianship means and all that it entails.
What is the Purpose of a Guardian?
A legal guardian has many responsibilities, but in general they fill the role of caretaker for the person or people who are under guardianship in the event you can no longer do so yourself. This could be the case after you pass, or in the event you become either mentally or physically incapacitated for any reason. Guardians have what’s known as a fiduciary duty to act on behalf of those they are put in charge of, and they must agree to always act in their best interest.
A big part of a guardian’s responsibilities is to ensure day-to-day needs are met. They must be ready and willing to make decisions regarding healthcare, legal matters, financial issues and more. Perhaps the biggest benefit to going through the process of naming a guardian is peace of mind. Knowing that you’ve provided for those you love most in this world to be cared for, when you can no longer do it, is a gift you can give yourself that’s like no other.
Types of Guardians
There are multiple types of guardians, and to truly feel that you’ve done all you can to ensure your dependents will be well-cared for, you should understand the differences. It’s important to remember that while guardianship for minor children is usually the first type that comes to mind when you’re thinking of Estate Planning, there are other types to consider, depending on your situation and future needs. In general, there are three basic types of guardianship: Full, limited and joint.
involves complete responsibility and decision-making ability or authority over another person. This can include financial, legal and personal affairs.
generally means responsibility for selected needs, like property and/or healthcare.
means that there would be more than a single guardian appointed.
Guardianship of Minors
Appointed to take care of a minor child’s needs. Most often, they would also manage financial decisions for the minor.
Guardianship of Elderly
Appropriate for when an elderly person cannot care for him or herself any longer. Sometimes also referred to as elderly conservatorship.
Legal Guardians for Adults
Used in cases where an adult is deemed incapable of appropriately caring for themselves and/or making decisions on their own behalf. Often occurs when a severe disability results in a person needing protection.
Can be implemented in cases where you are incapacitated and unable to make your own healthcare decisions. Often medical decision-making guardians are court-appointed.
Establishes rights and ownership for your pet or pets after you pass. Provisions in your Living Trust or Will can stipulate who you want to take your pet, as well as provide money for their care.
Also known as legal conservators, financial guardians will manage finances and assets. They must act in the conservatee’s best interest and make financial decisions while keeping an accurate record of other assets. A financial guardian must not mix a conservatee’s finances with personal.
The legal term or concept of being a guardian, as recognized in some states (there are certain states and contexts where “conservatorship” can have varying meanings). Appointed to manage and oversee daily activities and responsibilities for the ward, or person under guardianship. Conservatorship can be in place for a child or children or for an adult who is unable to care for themselves due to any number of reasons.
Guardianship vs. Custody
While both terms guardianship and custody are used in reference to a child’s legal rights, legal guardianship is appointed to someone who is not a child’s biological parent. Custody is typically used to describe a percentage of care. In cases when a parent is deemed unfit, a guardian will be appointed by the courts, giving the guardian custody while the parent or parents might still be able to maintain their parental rights. In either case, a child’s best interest governs the decisions that are made.
How to Choose a Legal Guardian?
Choosing a legal guardian to care for your loved ones in the event you are unable to do so is a daunting process. While there’s definitely no substitute for the care and love you give, choosing someone who reflects your values is key. You want to find someone who will be able to offer stability, love, guidance and most importantly, a life-long connection with your children. It’s not an absolute that you must select a family member, though they are usually on the list at some point. Friends and extended family members can also be ideal options. Once you have a short list determined, evaluate each candidate by asking the following:
Are they financially stable?
Are they capable?
Are they willing?
Are they detail-oriented?
Are they healthy?
Are they responsible?
Where are they located?
What would your child’s life look like if they were to live with this person?
What is the household structure of this person’s life? Do they have children of their own?
Where do they live? Would your child be able to stay in the same geographic location?
Who would be raising your child? You may select your best friend as guardian, but maybe his wife will be the one who is primarily raising your child.
Once you’ve decided on who you want to appoint as guardian, you should discuss your wishes with them. Let them know how much you trust them and be sure they are comfortable with your wishes.
When to Choose a Legal Guardian?
It’s always better to prepare for the unexpected, so the time to appoint a legal guardian is now. If you have a child, or if you are expecting your first or next child, and you haven’t taken care of this crucial part of your Estate Planning, you should sit down as soon as possible to start the process. Other times to consider finalizing guardianship could include:
Before you travel for the first time without your children
As you begin aging
When you are planning your healthcare directives
Before a major medical procedure or treatment
After a divorce
After a remarriage
If a previously appointed guardian suddenly becomes unable to fill the role due to changed circumstances, death or for any other reason
Steps for Appointing a Legal Guardian
Even though the idea of appointing a legal guardian for your loved ones can seem overwhelming, having a plan of action can help. Follow these steps to ensure you’re doing everything you need to set up proper care for your child or dependents.
Determine the type of guardianship needed.
Choose who you would like to be guardian of your children, dependents, pets or for yourself.
Come to an agreement with your spouse, if you have one.
Have an open and honest dialogue with the person or people you select. Discuss your wishes with prospective guardians to ensure they’re available, able and willing to be appointed legal guardian.
Decide how you’ll set up guardianship. You can go the traditional route of using a face-to-face attorney. You can use an online, free or cheap website. Or, you can use a proven, trusted partner in the industry like Trust & Will. Trust & Will was built by lawyers, an experienced legal team who understands the importance of getting it right. So you can trust your future rests in good hands and ironclad documents that ensure your wishes for protecting your children will be followed, exactly how you envision them.
Sign and notarize your guardianship in front of witnesses. Be sure you’re following state mandates for the number and type of witnesses you have.
Decision Making Ability of Guardians
A guardian plays an important role in a child’s life. He or she is charged with many responsibilities that ensure the well-being of the child, from both a physical and emotional standpoint. A legal guardian might have to make decisions on a child’s behalf regarding:
Medical care or treatment
Purchases for basic needs such as clothing, personal items, housing, household items, food, cars, educational needs and more
Management of bank accounts, Trusts and other financial decisions
Other Common Questions about Guardianship
Do Legal Guardians Receive Money From the State?
In cases where a guardian is appointed by the courts, they are typically entitled to compensation. You can also set up financial provisions for a guardian in your Will or Trust.
Can a Guardian Access Money I Leave My Child?
If the guardian is appointed to manage finances, then he or she would be able to use funds to benefit your child.
How to Get Guardianship?
In order to obtain legal guardianship, there’s a process determined by the state you and the child live in. Where an appointed guardian lives might have no legal bearing on the process, however some states do prefer a guardian lives in the same state as you. The reasoning behind this is a court may want the ability to monitor the new circumstances. Some states will allow an out-of-state guardian, as long as he or she has a registered representative or agent who resides in the original state. In virtually any state, a guardian must prove to a court that they’re willing and able to care for a child.
Is Guardianship Binding?
The general process of appointing guardianship is that a parent will nominate a guardian, and then the court must approve the selection. Most often, courts will approve and appoint the parent’s nominee, but ultimately, they will rule in the best interest of the child or children. So, while not common, there is the potential for a court to overrule your appointment.
How to Give Guardianship to a Family Member?
The safest way to appoint guardianship to a family member is to do so in your legal Estate Planning documents. Without this declaration on paper, you risk the courts deciding who should care for your child or children should you become unable to do so. Often, more than one person will come forward with a desire to become a legal guardian. If this happens and your wishes are not clear, the likelihood of the person you hope to become guardian becomes less of a given.
Guardianship vs. Power of Attorney
Both guardianship and Power of Attorney (POA) are legal ways to establish someone has control to act on your behalf should you become unable to make decisions. The difference between the two is largely in intent and purpose. A guardian oversees and makes decisions for another person, whereas a Power of Attorney allows someone to handle financial affairs. Another major difference is that POA is scalable. You can appoint a POA to have control over a limited, specific transaction, or you can give them full control.
Who Can Be a Guardian?
You can appoint virtually anyone who is of sound mind, over the age of 18 and who has never been convicted of a serious crime to be guardian. Some states require a guardian to be a legal US resident.
How Long Does Guardianship Last?
Most often, guardianship ends once a child is 18 years old. But there are a few other instances that could result in it ending, too – for example, if a dependent marries, enters a registered partnership or enters the military. Or, a guardian can decide he or she no longer wants to or can fill the role, or if they die, the court could step in and appoint a new guardian.
What Happens If I Die Without Appointing a Guardian?
If you do not formally name a guardian and you pass away, a probate court will ultimately appoint guardianship. The decision is based on what the court believes is in the best interest of the child or children.
Nobody wants to think about their children having to grow up without them, but being prepared in case the unthinkable happens can offer a peace of mind you won’t be able to find anywhere else. There’s a sense of power that comes with planning for the future...and it may just be the best gift you ever give your children.