The terms “legal guardian” and “guardianship” have different meanings in different states. A guardian is someone who is granted legal authority by the court to make decisions for an elder who is no longer competent to handle them (known as the ward). A guardianship is also called conservatorship in some places.
The duties of a guardian, generally speaking, are to oversee the welfare and safety of the ward and to attend to their financial needs, using their assets wisely. A guardian has control over the person they are appointed to serve, but they also have a legal obligation, called a “fiduciary duty,” to act in the best interests of the ward.
Types of Guardianship and Guardian Responsibilities
Just as power of attorney (POA) authorizations are split into two categories (medical and financial), guardianship can be as well. Depending on the extent of the ward’s incapacity and unique needs, a trustworthy individual may be granted guardianship of the person only, guardianship of the property only or both (known as “full” guardianship or plenary guardianship). In some cases, each side of a ward’s care may be entrusted to a different person or entity, and both guardians must work together closely when making decisions.
Guardianship of the Person
Guardianship of the person covers things that directly affect a ward’s daily life, such as medical, residential and social decisions. A court-appointed guardian of the person may have the following responsibilities for a ward:
- Determining where they will live;
- Monitoring their residence;
- Applying for government benefits;
- Providing consent for medical treatments;
- Consenting to and monitoring non-medical services, such as counseling;
- Releasing confidential information;
- Acting as a representative payee;
- Making end-of-life care decisions;
- Managing their social environment;
- Maximizing their independence in the least restrictive manner; and
- Reporting to the court at least annually.
Guardianship of the Property
Also known as guardianship of the estate, a person with this authorization manages a ward’s finances and property. An initial appraisal and inventory of a ward’s income, assets, property and debts must be performed and filed with the court when a guardian of the property is appointed. While serving in this capacity, a guardian must also keep a ward’s funds and property completely separate from their own.
A guardian of the property may have the following responsibilities for a ward:
- Deciding how their finances are handled;
- Applying for and managing government benefits (a separate authorization, such as VA fiduciary or representative payee may be necessary for working with some government agencies);
- Making investment decisions;
- Paying bills and taxes;
- Collecting debts, rent and other income;
- Managing real estate and other tangible personal property;
- Keeping detailed records of all income and expenditures;
- Requesting prior court approval for the sale, donation, transfer or mortgage of their property; and
- Reporting to the court and providing a complete financial accounting at least annually.
Accepting the Role of a Guardian
Guardianship is a very serious legal process intended to help support and protect the most vulnerable older adults. Legal guardians have a duty to the courts and to their wards to shield them from abuse, exploitation and neglect. Additionally, guardians must take their wards’ preferences into consideration while prioritizing their safety, comfort and needs. Being a guardian is a heavy responsibility that may not be suitable for everyone, and there is no denying that it strips elders of many rights. This role is formal, public and supervised. By engaging in careful legal planning and honest discussions before incapacitation is even an issue, many families can manage to avoid the guardianship process completely.
Sources: What Is Guardianship? (https://www.guardianship.org/what-is-guardianship/); MANAGING SOMEONE ELSE’S MONEY: Help for court-appointed guardians of property and conservators (https://files.consumerfinance.gov/f/documents/cfpb_msem_court-appointed-guardians_guide.pdf)