Adult guardianship refers to the body of laws that governs a person’s ability to manage their own affairs or their own estate.  If a court determines that an adult is totally incapacitated and no longer capable of managing their own affairs, they may appoint an “adult guardian” who will help the incapacitated person in managing personal affairs.  If an incapacitated adult still wants to retain some control, they can opt for a guardian advocate, which is a less-involved alternative to a full guardian.

A person can also appoint their own adult guardian ahead of time, usually through a document known as an advance directive.  The directive will list which person will assume the duties of adult guardian, and under what circumstances they are granted such authority. 

Guardianships are sometimes known as “conservatorships”.  The most common reasons for appointing an adult guardian include incapacity due to injury or due to aging.  Adult guardianship is different from family law guardianship.  Adult guardianship has to do with a person’s health and estate matters, while guardianship in family law usually refers to the care of a minor. 

What are the Duties of an Adult Guardian?

There are three basic types of adult guardians:  Guardian of the Person; Guardian of the Estate or Property; and Plenary Guardianship.  Each is associated with different duties and responsibilities:

  • Guardian of the Person:  This type of guardian assists with issues the incapacitated person’s health or medical condition.  They are responsible for such issues as, making hospital appointments, coordinating with assisted living, paying medical bills, and securing medical coverage and insurance for the person.  A guardian of the person is typically named in a document known as an advance medical directive.
  • Guardian of the Estate or Guardian of the Property:  This type of guardian is charged with general responsibility over the person’s estate, property, and assets.  Duties may include filing taxes, inventorying and distributing property items, managing bank accounts, and investing property in a reasonable and prudent manner. 
  • Plenary Guardian:  This is a general guardianship that combines the duties of a guardian of the person and the duties of a guardian of the estate.  In other words, a plenary guardian is legally in charge of handling both the person’s medical matters as well as personal property matters. 

The duties of an adult guardian may also be specifically indicated in the advance directive created by the estate holder.  The adult guardianship usually begins once the estate holder has been found to be incapacitated or unable to manage their own personal affairs.

Can an Adult Guardian be held Liable for Injuries or Losses?

The duties of an adult guardian are legally enforceable if the advance directive satisfies the requirements of a valid contract document.  Or, if a court has issued an order in relation to the guardianship, the guardian will be bound by the terms of the court order.

Thus, if an adult guardian fails to abide by the requirements of the directive or the court order, they can sometimes be held liable for injuries or financial losses caused by their conduct.  For example, if they fail to invest the person’s assets in a reasonable manner, they could be held liable for the resulting losses.  Or, if they act outside the scope of their duties listed in the directive, it could also lead to liability.

Adult guardian liability can also be based on a negligence theory.  Negligence occurs where the guardian fails to act according to their duty of care as a guardian.  If the breach of their duty was the definite cause of loss or injury to the estate holder, it could form the basis for a civil negligence lawsuit.   

Finally, if a person breaks the law in the course of fulfilling adult guardianship responsibilities, they may be held liable for their illegal conduct. 

Do I Need a Lawyer for Adult Guardianship Issues?

Adult guardianship is a very important part of planning for the future.  If you need help with adult guardianship laws or with an advance directive, you may wish to speak to an estate lawyer for advice.  Your attorney can help you draft your directive so that your intentions are clearly indicated.  Also, if you have a dispute involving adult guardianship, your lawyer can represent you in court if necessary.