Guardianship
Understand the guardianship process with Davis & Associates. Learn how to protect your loved ones, navigate legal requirements, and secure their future today.
Guardianship Overview
- What Is Legal Guardianship in Estate Planning?
- Common Types of Guardianship for Your Loved Ones
- Who Can Serve as a Legal Guardian?
- Find the Help You Need Near You
- Practice Areas
- Frequently Asked Questions
- Legal Responsibilities and Duties of a Guardian
- How to Challenge or Terminate a Guardianship
- Meet Our Attorneys
- How Davis & Associates Can Help Set Up Your Guardianship
- Expert Strategies, Industry Trends, & Firm News
Setting up a guardianship is the ultimate act of love that you can provide for a family member. This is a court-supervised legal process that designates an adult to make decisions for a minor child or a person who has become incapacitated.
Whether you are setting up a guardianship for one of your children or an elderly parent, you’ll need to understand the boundaries of a guardianship arrangement and the process for getting it court approved.
The experienced estate planning attorneys at Davis & Associates can provide you with the guidance and support you need to complete a guardianship arrangement.
Once in place, you’ll find peace of mind knowing that your loved ones are protected.
What Is Legal Guardianship in Estate Planning?
Legal guardianship is a court-ordered relationship in which one person, the guardian, is granted the power to make personal and financial decisions for another person, the ward.
The purpose of a guardianship is protection. It is put in place when a ward lacks the capacity to make decisions that are in their best interests. That can apply to children who are minors or elderly parents who have become incapacitated because of illness, such as dementia.
To make it official, the court will grant letters of guardianship. Once the court has appointed a guardian, that person has the power to step in and act on behalf of the ward.
Common Types of Guardianship for Your Loved Ones
As you explore setting up a guardianship for your loved one, it is important to understand your options and how they can meet your specific needs. These are the common types of guardianship to consider:
Plenary or Full Guardianship
This is the arrangement in which the court grants a guardian full legal authority to make all decisions regarding a person’s life, health, and finances.
Limited Guardianship
With a limited guardianship, the court specifies which rights the guardian holds. That allows the ward to retain certain decision-making powers in other areas. For example, you might want to have limited guardianship over your parents’ finances if they transition to a long-term care facility but are still mentally alert.
Guardianship of the Person
Guardianship of a person allows the guardian to take over all the responsibilities of caring for that person. That includes the basics of providing medical care, food, and clothing.
Guardianship of the Estate
Being designated as the guardian of an estate extends your responsibilities to manage all of the financial assets of the ward, including income and property.
Temporary/Standby Guardianship
This is a short-term arrangement that is often used for minors if a parent becomes temporarily incapacitated or passes away.
Who Can Serve as a Legal Guardian?
Just because a person applies to be a legal guardian does not mean that the court will automatically grant them that guardianship. The court will prioritize a person it deems trustworthy and capable, who can act in the ward’s best interest.
Each state has its own requirements, but they will generally consider the following basic qualifications:
- The guardian must be at least 18 years old
- No serious criminal history
- Proof of residency
- Financial responsibility in managing assets
- Completion of required training or certification (in certain states)
There is also a hierarchy that courts will follow, which follows this preference list:
- Spouse
- Adult child
- Close relative
- Trusted family friend
- Professional guardian (if no suitable family member is available)
It is common for the court to appoint a guardian ad litem or attorney ad litem. This is a designated person who will investigate and make recommendations about the ward’s best interests.
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A power of attorney is a private agreement where a person chooses an agent to act for them, while guardianship is a court-ordered relationship for someone who lacks the capacity to make their own decisions. Guardianship is often more complex and involves court oversight, whereas a power of attorney is established before a person becomes incapacitated.
The guardianship process typically takes between two and four months, depending on the court’s schedule and the urgency of the situation. Emergency temporary guardianships can sometimes be granted in a matter of days if there is an immediate threat to the ward’s safety or assets.
Yes, family members can contest a guardianship if they believe the proposed guardian is unfit or if they believe the ward is actually capable of managing their own affairs. This leads to a contested hearing where a judge will determine what arrangement serves the best interest of the ward.
Legal Responsibilities and Duties of a Guardian
Before anyone accepts the role of guardian, they need to fully understand all the legal responsibilities they are taking on. In some jurisdictions, a guardian is also required to file an annual report on the ward’s well-being. These are the key responsibilities of a guardian, grouped into three main categories: personal care, financial management, and legal duties.
This is how that breaks down:
Personal Care:
- Housing that provides a safe home, food, and clothing
- Medical and dental care
- Education
- Special decisions, such as obtaining a driver’s license or joining the military
Financial Management:
- Asset management that includes managing the ward’s money, property, and benefits
- Record keeping that includes keeping records of all income and expenses
- Accounting
Legal Duties:
- Fiduciary duty that puts the ward’s interests above the guardians
- Court oversight, which means seeking approval for significant decisions
- Reporting
- Family contact, which facilitates visits between a child and other family members
How to Challenge or Terminate a Guardianship
Although it is court-ordered, a guardianship is not automatically permanent. A guardianship can be challenged if it is established that the proposed guardian is unfit or the ward has regained their capacity to make their own decisions. A guardianship can also be challenged if there is evidence of misconduct.
There might also come a time when the guardianship arrangement is no longer necessary.
For instance, when a minor child becomes an adult. If you need to contest a guardianship, you need to file a formal objection with the appropriate probate court.
How Davis & Associates Can Help Set Up Your Guardianship
Each guardianship arrangement is unique. As parents, let’s set up guardianship for your children in case anything happens to either of us. This is like an extension of an insurance policy. If you need to set up the guardianship because your parent is struggling, it can be emotionally overwhelming.
At Davis & Associates, we guide our clients through every step of the process, from filing the petition for guardianship to representing you at the final hearing. Our team ensures that all legal requirements are met, deadlines are handled properly, and your loved one’s rights are protected.
If guardianship is necessary, contact Davis & Associates today to schedule a consultation. Let us help you protect your family member’s future with confidence and care.
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