What is a Guardianship and When is it a Good Idea?

August 26, 2015 | By Samantha B. | Filed in: Guardianship.

The legal term for getting control of another individual’s finances and ability to make important decisions is known as Guardianship. It may also be referred to as conservatorship, when applied to control over another adult’s affairs. It is often confused with power of attorney, which is used to make decisions for an aging parent or someone who may become physically or emotionally unable to make decisions about finances and health care in the near future.

There are two types of guardianship recognized by courts in most states. One form of guardianship allows a person to make decisions and handle finances for another adult. The other form of guardianship refers to an adult making legal, financial, and healthcare decisions for a minor child, when a biological parent is unable to do so.

Adults who care for minor children, who are unable or decide not to legally adopt, will need to have guardianship, to enroll the child in school and seek health care services for the child. Often, friends of the family or blood relatives will care for children when their biological parents are unable. Aunts, uncles, and grandparents often seek guardianship when parents die suddenly, are missing, or are unable to care for their children. Legal guardianship, in such instances, does not necessarily terminate biological parent rights. It can exist along with the parental relationship, particularly when parents are temporarily unable to care for their children.

Guardianship of a child ends when the child turns 18 or when the child marries. A caretaker of the child can also gain guardianship of his or her physical property, such as a home left by deceased parents. However, guardianship of property does not end when the child marries, until he or she turns 18. Biological parents or adoptive parents can seek to end the guardianship relationship, when or if the situation changes.

For adults, guardianship is sometimes necessary, when an individual is unable to make sound decisions about care, finances, and other important life decisions. In many instances, a child may have durable POA (Power of Attorney) to make decisions for an aging parent. However, guardianship gives the person caring for the older adult more control, including decisions about where to live, whether or not to possess a driver’s license, enter contracts on the adult’s behalf, and buy or sell property.

Guardianship is different from POA. While both are legal, binding documents, guardianship is an extensive that gives an individual greater decision making power. It also requires a court hearing and notification, through due process, to all parties involved. Gaining durable power of attorney simply requires both parties to sign a document and have it notarized.

An adult may wish to contest the application for guardianship. In many instances, legal representation may be necessary. This applies to individuals who seek guardianship of another adult as well. The court will accept evidence presented to make the case for why the individual can or cannot make sound decisions for him or herself.

For an aging adult who may be suffering from dementia or Alzheimer’s disease, durable power of attorney is usually the route to take. However, a person with dementia may still have access to finances and may be unable to manage them effectively. This is a good time to consider legal guardianship. It may be necessary if the aging adult is unable to protect his or her assets from outsiders, such as home health caregivers or acquaintance. A person who suffers from severe mental illness, who is proven to make unwise and harmful decisions or fails to exercise appropriate decision making may also benefit from a designated guardian, who can act as a payee to handle finances.

For additional information on this topic visit:
http://www.expertlaw.com/library/estate_planning/guardianship.html
http://www.nj.gov/humanservices/ddd/services/guardianship/

Note that the author of this article is not an attorney. Consult a qualified attorney before making any decision that could affect the financial and tax status of you and your family.


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