Guardianship is an extremely important legal role for any individual to take on. An individual who becomes a legal guardian is typically appointed by a probate court. In certain states, guardianship is referred to as a conservatorship.
Guardianships empower a court-appointed guardian to make decisions on behalf of another individual, called the ward, including:
- Medical; and
In the majority of guardianship situations, the ward is a child or an individual with severe mental or physical disabilities that prevent them from making decisions on their own behalf. For example, a parent’s status as a legal guardian of their child terminates when that child turns 18 or reaches the age of majority in the state in which they reside.
However, in some cases, children may not be capable of caring for themselves due to a disability. In these situations, parents may seek to extend their guardianship over their child or children into their adulthood.
Another example may include elderly parents who become mentally incapacitated and unable to make their own financial, medical, or personal decisions. An adult child may then seek to become a guardian of their elderly parent in this type of situation.
It is important to note that guardianship is a state law issue. Therefore, if an individual needs to seek a guardianship for their disabled child, an incapacitated elderly parent, or another individual, it is helpful to consult with an attorney who is familiar with the laws governing guardianship where the individual lives.
Who Can Serve as a Guardian?
Probate courts determine who is qualified to be appointed as a guardian of a ward. When choosing a guardian, the court will examine numerous factors, which may vary from case to case but typically include:
- Whether there is a personal relationship between the ward and the guardian;
- The unique needs of the ward;
- If the ward is able to provide their opinion regarding who the guardian should be, it should be considered;
- Whether the guardian is able to understand and meet the needs of the ward;
- The location where the ward lives and where the guardian lives;
- Any previous successful experiences acting in guardianship roles;
- Possible concerns related to the motive or intent of a guardian which might not be in the best interests of the ward;
- Whether the guardian is available for the entire length of time that the guardianship is required; and
- The opinion of the family, friends, or caretakers of the ward regarding who should be appointed.
What is Adult Guardianship?
In most cases, when individuals consider a guardianship, they think of an individual who cares for a minor who cannot care for themselves. Although they are not as common, there are some instances where adults become incapacitated to the point where they are unable to meet their own needs.
In these types of cases, a guardian can be named or appointed to help with their healthcare and physical needs as well as their financial affairs.
When is an Adult Guardian Necessary?
Adults may require a formal legal guardian if they struggle to meet their own basic needs or if they cannot manage their own personal affairs. In many situations, there is a medical issue which renders an individual debilitated.
For example, if an individual has a stroke or a heart attack and suffers brain damage as a result, they may not be able to perform the most basic tasks or handle their finances or other affairs. A guardian is often appointed for adults who are developmentally disabled and are unable to live on their own, including individuals with Down Syndrome or low-functioning autism.
What Are an Adult Guardian’s Duties?
There are three main categories of guardianship. Each has its own specific set of duties and responsibilities.
Depending upon the circumstances, a guardian can be named to perform as one type of guardian. However, they may also be appointed to perform all guardianship duties.
The three categories of guardianship include:
- Guardianship of the person;
- Guardianship of the estate; and
- Plenary guardianship.
Guardianship of the person gives the guardian the ability to manage an incapacitated individual’s healthcare and medical needs. These duties may include:
- Making and attending doctor’s appointments;
- Handling insurance issues;
- Paying medical bills;
- Coordinating with assisted living or nursing homes; and
- Other issues.
A guardianship of the estate, also referred to as guardian of property, places a guardian in charge of all of an incapacitated individual’s finances and assets. A guardian of the estate completes tasks including:
- Monitoring bank accounts and assets;
- Filing taxes; and
- Handling personal and real property.
A plenary guardianship combines the duties of a guardianship of the person and a guardianship of the estate. In a plenary guardianship, the guardian is responsible for the incapacitated adult’s healthcare needs as well as the management of their estate.
The duties of a guardian may be limited under certain circumstances. A court may appoint a guardian advocate instead of a full guardian. This provides the incapacitated individual with a higher level of control and more decision-making power.
How is an Adult Guardian Appointed?
Adult guardians are appointed by court orders. The individual who is seeking guardianship will file a petition in the proper court and then appear in front of the judge to establish the potential ward’s disability or incapacity.
Qualified guardians are individuals who are legal adults, typically 18 years of age or older, and do not have any disabilities themselves. Numerous states also have other requirements for potential guardians, which include restrictions on those individuals with criminal records.
A court is more likely to appoint a family member, such as a parent or sibling, but they must also consider the incapacitated or disabled individual’s wishes if they are able to express them. It may be possible for an individual to plan ahead for guardianship purposes through estate planning, although not all incapacitated adults have the ability to do so.
Individuals may include their wishes in an appointment of guardianship form or in an advanced directive. These documents would allow an individual to detail who they would want to serve as their guardian if they become incapacitated or disabled in the future.
If the form is valid, the court will honor these documents unless there is serious or overwhelming evidence showing that the named guardian is not fit to serve.
Is an Adult Guardian Liable for Losses and Injuries?
Yes, adult guardians are liable for losses and injuries. Because guardianship appointments are made by court order, any actions which violate either the order or an estate planning document which details their rights and responsibilities are considered legally binding.
For example, if a guardian takes unreasonable actions or risks with the money or property of a ward, they may be held financially liable for losses which occur. If the guardian fails to properly perform their duties and the result is harm to the ward, a lawsuit may be allowed to compensate the injured ward.
Do I Need an Attorney to Help with Adult Guardianship Issues?
It is essential to have the assistance of a will lawyer for any issues, questions, or concerns you may have related to a guardianship. A guardianship is a serious responsibility. If you want to ensure your choice of guardian is appointed, your attorney will help you complete the proper paperwork.
If one of your adult family members suddenly becomes unable to care for themselves and they do not have their wishes written down, you should consult with a family law attorney. Your attorney will guide you through the process of petitioning a court for a guardianship appointment.