Guardianship
Summary
A guardian is someone who has the legal right to make decisions and take action for another person. Guardianship occurs if a person is incapable of deciding or acting for themselves and has not made arrangements for someone of their own choice to act for them. This article explains how someone becomes a guardian, who can be a guardian, and what a guardian does. It also explains the difference between a guardian and a conservator.
What is a guardian?
A guardian is someone who has been given the legal right to make decisions for another person if that person
- cannot make rational decisions for themselves and
- did not legally name someone of their own choice to make decisions for them by creating a durable power of attorney or a living will; or
- did legally name someone to make financial decisions but not medical ones, or vice versa
How does a person become a guardian?
To become a guardian, a caregiver or other person must go to court and give a judge papers stating that the individual in question can no longer make rational decisions for themselves. This could happen, for example, if the loved one develops advanced dementia or has a stroke.
If there is any doubt that the individual is unable to make decisions for themselves, and they can still speak, the judge may want to speak directly to the person. Or, the judge might ask an investigator to speak to and assess the person.
The person asking for guardianship must also show that no one else has been granted the legal right to make decisions for the incapacitated person. This might be because the person has not made a living will or named a medical proxy. They also might have given someone general power of attorney instead of durable power of attorney.
Once the person asking to be guardian has made their case in front of the judge, the judge will decide whether that person is a suitable candidate for guardianship. If so, the judge will legally name that person guardian.
Who can be a guardian?
Most often the person who is named as guardian is a spouse or adult child. Non-married partners and close friends will generally not be considered.1 The judge will usually want the person to live close enough such that they can handle the ward’s day-to-day affairs.
In some cases, the judge will give guardianship to a professional guardian or a paid private guardian instead of someone close to the incapacitated person. They might do this for a number of reasons:
- No family member lives close enough to effectively act as a guardian.
- No one close to the incapacitated person has the financial skills to handle the person’s money well.
- The judge feels that family members might not act in an ethical manner if they were named guardian.
What does a guardian do?
Guardians handle many matters for their wards. These can include decisions about routine care, but also more significant matters such as:
- Deciding where they’ll live
- Making arrangements for their medical care and treatment
- Applying for benefits, pensions, and medical coverage
- Filing taxes and handling other legal and financial paperwork
In addition, guardians must keep careful track of the decisions they make and money they spend. They will need to report this information to the court on a regular basis.The guardian is a fiduciary, meaning they are legally obliged to act in the best interests of the incapacitated person, who is now called their ward
Is guardianship the same thing as conservatorship?
The words “conservator” and “conservatorship” are often used instead of “guardian” and “guardianship.” In some states, a conservator refers only to someone who handles the ward’s financial matters, not matters regarding their medical care or other non-financial issues. In some states, a conservator handles all types of decisions and actions, and the words “conservator” and “guardian” mean the same thing.
There can also be a difference between the guardian or conservator of a person (someone who makes decisions about care, et cetera) and the guardian or conservator of an estate (someone who makes only financial decisions). Whatever they are called, a person who has been appointed by the court to handle someone else’s financial matters should be a financially responsible person
Related information
Advance directives
Decisions related to aging and the end of life
Durable power of attorney
Living wills
Medical power of attorney
Overview of legal documents
End notes
1 Conservatorships and Adult Guardianships. Nolo.com
