Estate Planning – Guardianship
What is guardianship?
Guardianship, as it relates to estate planning, is where the Court grants a person the ability to carry out your legal rights in the event you are mentally incapacitated. These most specifically include rights regarding your health. The guardian can be individual or an institution.
How is guardianship different from getting a child’s guardian?
When you are seeking legal guardianship for a minor, this is a different process where you establish a guardian ad litem. Guardian ad litem is granted to ensure a child’s best interests are met during legal proceedings such as divorce disputes. A parent can declare in a written will who they would like the guardian ad litem to be for their children in his or her untimely death. Guardianship, as we are discussion here, is the process surrounding an individual’s inability to make decisions because he or she is mentally incapacitated.
When is a guardian necessary?
A guardian can be necessary for anyone, as unfortunate and untimely accidents can and do occur. A guardian will be necessary if you do not plan ahead and have health care power of attorney in place. The court will then appoint a guardian to you if you become mentally incapacitated.
Guardianship is especially necessary if you have a loved one who has a mental illness or disability. This can be your spouse or parent who develops Alzheimer’s or dementia, or for a child born with special needs.
Do I need a guardian?
Not necessarily. Unless you are encountering a situation described above, a guardian may not be necessary. However, if you don’t have a power of attorney in place you will need a guardian to handle your financial affairs in the event you become mentally incapacitated.
A power of attorney becomes invalidated once you become mentally incapacitated, and the Court will appoint a guardian for you. If you have a durable power of attorney in place, an attorney can still make decisions for you regarding your financial matters even in a mentally incapacitated state.
A health care power of attorney will only allow an attorney to make medical decisions for you in an incapacitated state, but not for matters dealing with your financial or business affairs.
It is important to investigate all aspects of estate planning as we all have different needs in our families.
What happens if I do not have guardianship established?
If you are mentally incapacitated an you do not have a guardian established, along with a power of attorney, durable power of attorney or health care power attorney, the court will determine who will be your guardian to carry out your financial and/or medical decisions.
Guardianship should be established for children with special needs and for spouses or children who develop illnesses.
What is the difference between guardianship and conservatorship?
Guardianship grants a person the right to carry out decisions regarding your physical and mental health if you mentally incapacitated. This may include things like determining where you will live if you need 24-hour health care or making medical decisions concerning your health and well-being. Conservatorship is needed for an individual’s business, financial and property to be carried out if you are mentally incapacitated.
Is a guardian and conservator the same person?
No, a guardian and conservator do not have to be the same person.
*More information on guardianship for special needs persons can be found in the special needs section of our site.