Guardianships

Guardianship is a court ordered responsibility given to a person so that they may have the authority to make decisions for another.  To qualify, the person seeking to be a guardian must prove in court that the proposed ward is incapacitated due to a physical or mental condition.  Just showing that the proposed ward can’t get around easily or keep up with their bills is not enough; the guardian will have to show incapacitation such that the ward is substantially incapable of providing basic necessities such as food, clothing or shelter, or is incapable of managing their personal finances or healthcare needs.  Once a judge determines that a guardian is needed, the court appoints the guardian and grants the power with any limitations it sees fit.  There are two types of guardianships: Guardian of the Person and Guardian of the Estate.  The two are usually given together but are discussed separately below.

Guardian of the Person

A person who becomes a guardian is given certain responsibilities by the court.  These include providing care and supervision for the ward, arranging healthcare services, and making medical decisions.  A guardian may also be required to manage the ward’s finances.  Wards are not completely without say as to who their guardian is and may contest a guardian when the guardian seeks to be appointed.  The ward may also appoint a guardian in advance before the need for a guardian arises.  Options other than guardianship are available, such as Powers of Attorney and Management Trusts, and potential wards may find these more appealing.

Guardian of the Estate

When a person is granted the power of guardian of the estate, they agree to undertake the management of the ward’s estate and all the assets it includes.  Because the guardian is given such control, they are required to post a bond.  These bonds work in a similar way to insurance in that the guardian pays an annual premium to a bonding company.  However, the guardian will receive reimbursement from the ward’s estate.  Until the bond premium is paid, the guardian will not be able to act in guardianship capacity.  Furthermore, the guardian must have a probate court pre-approve expenses taken out of the ward’s estate.  Without pre-approval, the guardian may be held liable.  This process ensures that the guardian does not act unethically with the ward’s estate.


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