The Different Types of Guardianship
Understanding the Different Types of Legal Guardianship
Seeking guardianship for a loved one is a request to the court for decision making power about where they will live, the medical care they will receive, or how they will handle their finances.
Choosing a guardian itself is difficult, and sometimes an emotional decision. Understanding the different types of guardianships may make it easier to identify the right option.
Temporary guardianship is granted when:
- Parents or other current legal guardians agree to allow someone else to temporarily care for their minor child or other loved one; or
- A court assigns temporary guardianship to someone who petitions the court, usually in a situation where there is an emergency medical concern or concerns about the person’s wellbeing.
Unlike a permanent guardianship, a temporary guardianship generally has an end-date or is only designed to last until a permanent determination is made. For example, parents may name grandparents as temporary guardians while they are out of the country for an extended period to allow the grandparents to consent for school enrollment, medical care and more.
The same is true with temporary guardianship of an adult. The guardian can make decisions on their behalf, such as whether to undergo certain medical procedures or to move them into a long-term health facility. This lasts until the court decides the next step which includes whether to make the guardianship permanent, name someone else as guardian, or restore the individual’s rights.
Emergency guardianship means a temporary guardian makes decisions on behalf of a ward who is in immediate danger, such as requiring emergency medical care or removal from an abusive or dangerous situation. When a court receives a petition for emergency guardianship, they may grant it after a short hearing or even without a hearing. An emergency guardianship may only grant limited powers pending a full hearing to grant permanent guardianship.
Guardianship of a Minor
This guardianship is the legal process for one or more adults to take over the care and upbringing of a minor, generally a child under the age of eighteen. The guardianship process gives the guardian the right to make decisions and authorize medical care, handle school enrollment, and to take other necessary actions.
Depending on the circumstances, a child’s guardian may or may not also be that same person to act as trustee of any trust or conservator of other funds to cover the expenses of raising the child.
Unlike with adults, guardianship of a child generally has a built-in end-date: when the child reaches age 18 or the age of majority in their state.
Adult guardianship generally only applies when there is some reason why the ward cannot make decisions about their own welfare, medical care, or financial affairs. Situations include when the person has a mental healthcare need, a cognitive condition, or an age-related decline in abilities. For example, if your mother has Alzheimer’s disease or dementia, you may need to pursue guardianship to ensure she receives the quality of care she deserves, and her finances are handled appropriately.
In general, courts approach guardianship for an incapacitated adult as follows:
- Granting full decision-making responsibility for both the person and their financial affairs;
- Granting limited guardianship, which only includes the authority to make decisions about medical care, legal affairs, financial accounts, or other specified limited needs; or
- Granting guardianship of the person’s various needs to more than one person, such as naming you the guardian of the financial affairs and giving another family member decision-making ability over medical care.
Courts use the phrase “incapacitated person” to describe a person who may become the ward of a guardian. When an adult needs someone else to make decisions on their behalf, it is generally because they are incapacitated in some way. If there is no proof that an adult is incapacitated in a way that puts them in danger of harm, it is unlikely that the guardianship proceeding will be successful.
Before the court will grant guardianship, they will need to determine that the potential ward is lacking the ability to manage their own essential needs and necessary decision-making.
Often, the incapacitated person struggles to:
- Communicate their needs or personal desires
- Meet their own hygiene and sanitation needs
- Clothe, feed, or medicate themselves as needed
- Authorize the necessary medical care and support
- Make sound financial decisions
In some cases, an incapacitated person may only be affected in a limited way. For example, they may be unable to pay their bills properly, but they can still handle their own medical decisions. When this occurs, a limited guardianship of the estate may be appropriate.
Guardianship of a Person
Guardianship of a person may refer to a type of limited guardianship that gives the guardian the responsibility for making decisions for the ward’s medical care, daily life, and other personal matters. Some people may use “guardianship of a person” to refer to someone who has full decision-making responsibility for either a child or adult.
In general, the responsibilities that come with guardianship of a person include:
- Providing for basic needs, including housing, food, and how they will meet other basic needs
- Protecting against abuse, neglect, and harm
- Ensuring proper medical care and treatment
- Providing for any special needs
Guardianship of the Estate
Guardianship of the estate names a guardian who is responsible for financial matters of the ward, including their income, assets, property, and expenditures. A guardian of the estate is a type of limited guardianship and has no control over the day-to-day decision-making for the ward’s medical care or other personal needs which may be the responsibility of another guardian.
In general, guardianship of the estate is only necessary when a durable power of attorney for finances was not signed before the ward became incapacitated. Therefore, a guardianship of the estate is normally not necessary when there is a financial POA since the POA appointed agent or attorney-in-fact makes the financial decisions on behalf of the incapacitated individual.
Guardian Ad Litem
A guardian ad litem sometimes referred to as a GAL, is appointed by the court during a guardianship or custody proceeding. The job of the guardian ad litem is to represent the interests of the child or incapacitated individual.
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