Guardianship is a legal arrangement in which a court appoints a person — called a guardian — to make personal and medical decisions on behalf of another person who is unable to make those decisions for themselves due to incapacity. It is a serious legal proceeding that involves court oversight and can significantly affect the rights and independence of the person subject to it.
Guardianship is most commonly needed when an adult becomes incapacitated due to dementia, serious illness, or injury and has not put legal documents such as a healthcare power of attorney or durable power of attorney in place to authorize someone to act on their behalf.
How guardianship works
When a person becomes incapacitated and cannot make their own decisions family members or other interested parties may petition a court to appoint a guardian. The court evaluates evidence of the person’s incapacity and if it determines that guardianship is warranted appoints a guardian to make decisions on the incapacitated person’s behalf.
The person subject to guardianship is called the ward or protected person. The guardian is legally responsible for making decisions in the ward’s best interests subject to ongoing court supervision.
Types of guardianship
There are several types of guardianship depending on the scope of authority granted and the person subject to guardianship:
- Guardianship of an adult — court appointment of a guardian to make personal and medical decisions for an incapacitated adult. This is the most common type of guardianship involving older adults.
- Guardianship of a minor — court appointment of a guardian to care for a minor child when the child’s parents are deceased, incapacitated, or otherwise unable to care for the child
- Limited guardianship — grants the guardian authority only over specific areas where the person needs assistance while preserving their independence in areas where they are still capable of making their own decisions
- Full guardianship — grants the guardian broad authority over all personal and medical decisions for the ward
- Temporary or emergency guardianship — a short term guardianship granted by a court in urgent situations where immediate action is needed to protect a person’s safety or wellbeing
Guardianship vs conservatorship
Guardianship and conservatorship are related but distinct legal arrangements. The terminology varies by state but in general:
- Guardianship — gives authority over personal and medical decisions such as where the person lives, what medical treatment they receive, and how they spend their time
- Conservatorship — gives authority over financial affairs and assets such as managing bank accounts, paying bills, and making investment decisions
In some states a single proceeding can establish both guardianship and conservatorship. In others they are separate proceedings. Some states use the term guardianship to refer to both personal and financial authority.
How guardianship is established
Establishing guardianship involves a formal court process that typically includes:
- Filing a petition — a family member, friend, or other interested party files a petition with the probate or family court requesting that a guardian be appointed. The petition describes the person’s incapacity and explains why guardianship is necessary.
- Notifying interested parties — the court requires that the proposed ward and other interested parties such as close family members be notified of the petition and given the opportunity to respond
- Appointing a guardian ad litem — in many states the court appoints an independent person to investigate the situation and report to the court on whether guardianship is appropriate and in the proposed ward’s best interests
- Medical evaluation — a physician or other qualified professional typically submits a report documenting the person’s incapacity
- Court hearing — the court holds a hearing at which evidence is presented. The proposed ward has the right to appear, be represented by an attorney, and object to the guardianship.
- Court order — if the court determines that guardianship is warranted it issues an order appointing the guardian and defining the scope of their authority
The guardian’s responsibilities
A guardian has significant legal responsibilities and is subject to ongoing court oversight. Typical responsibilities of a guardian of an adult include:
- Making decisions about the ward’s living arrangements
- Consenting to or refusing medical treatment on the ward’s behalf
- Ensuring the ward’s basic needs are met including food, clothing, shelter, and medical care
- Advocating for the ward’s wellbeing and quality of life
- Filing regular reports with the court about the ward’s condition and the guardian’s activities
- Seeking court approval for certain significant decisions such as moving the ward to a nursing home or consenting to major medical procedures in some states
Who can be appointed as guardian
Courts generally prefer to appoint a family member or trusted person who knows the ward well. Common choices include:
- A spouse or domestic partner
- An adult child
- A sibling or other close relative
- A close friend
If no suitable family member or friend is available the court may appoint a professional guardian — an individual or organization that provides guardianship services for a fee. In some cases a public guardian — a government agency or official — may be appointed when no private guardian is available.
The cost of guardianship
Guardianship can be expensive. Costs typically include:
- Court filing fees
- Attorney fees for the petitioner and in some cases for the proposed ward
- Fees for the guardian ad litem
- Ongoing attorney fees for annual reports and other court filings
- Professional guardian fees if a professional is appointed
Total costs for establishing a guardianship can range from several thousand to tens of thousands of dollars depending on the complexity of the case and whether it is contested. Ongoing costs for annual reports and court supervision add to the expense over time.
How to avoid the need for guardianship
The most effective way to avoid the need for court-supervised guardianship is to put legal documents in place while you are still mentally competent including:
- Healthcare power of attorney — names a trusted person to make medical decisions on your behalf if you are unable to do so without court involvement
- Durable power of attorney — names a trusted person to manage your financial affairs if you become incapacitated without court involvement
- Living will or advance directive — documents your wishes regarding medical treatment so your healthcare agent and physicians know what you want
These documents allow your chosen representatives to step in and make decisions on your behalf immediately without the expense, delay, and public nature of a court proceeding. This is one of the most compelling reasons to complete estate planning documents while you are still healthy and able to do so.
Guardianship and dementia
Guardianship is most commonly needed for older adults who develop dementia and have not put legal documents in place. As dementia progresses a person may lose the ability to make safe decisions about their own care and finances. If legal documents are not already in place guardianship may be the only option for family members who need legal authority to help.
If a loved one is showing early signs of cognitive decline it is critical to consult with an elder law attorney as soon as possible to put legal documents in place while the person still has the mental capacity to sign them.
Rights of the ward
Even after guardianship is established the ward retains certain rights that the guardian cannot override. Depending on state law these may include:
- The right to be treated with dignity and respect
- The right to communicate with family and friends
- The right to participate in decisions about their own life to the extent they are able
- The right to have the least restrictive guardianship appropriate for their needs
- The right to petition the court to modify or terminate the guardianship
Key terms to know
- Guardianship — a court-supervised arrangement in which a guardian makes personal and medical decisions for an incapacitated person
- Guardian — the person appointed by the court to make decisions on behalf of the ward
- Ward or protected person — the person whose decisions are being made under guardianship
- Guardian ad litem — an independent person appointed by the court to investigate and report on the appropriateness of a guardianship
- Limited guardianship — a guardianship that grants authority only over specific areas where assistance is needed
- Public guardian — a government agency or official appointed as guardian when no private guardian is available
- Conservatorship — a court-supervised arrangement giving authority over financial affairs distinct from guardianship in many states
Sources
- American Bar Association — Public Resources
- National Guardianship Association — guardianship.org
- National Institute on Aging
- USA.gov — Estate Planning
This article is for general informational purposes only and does not constitute legal advice. Guardianship laws vary significantly by state. Consult a licensed attorney for guidance specific to your situation.