What You Should Know About Setting Up a Guardianship

If you are new to estate planning, you might not be aware of the differences between a guardianship and, say, power of attorney. However, if you need to set up legal protections for a minor, elderly relative, or person otherwise incapable of managing their own affairs, it is important to understand the distinctions and choose the best option available. Here is what you need to know about legal guardianship.

What is guardianship?

Guardianship (sometimes called conservatorship) is a legal process designed to protect the rights and property of individuals who cannot look after their own well-being due to age, disability, or incapacity. A court appoints a legal guardian for the person in question (the ward), and the guardian is granted the legal authority to make personal and financial decisions on behalf of the individual. In the case of minors, the guardianship usually ends when the ward turns 18, but in cases of age and incapacity the guardianship usually remains in place throughout the individual’s life.

Guardianship of a Minor

A court may appoint an adult guardian to care for a minor who is not the child of the adult. Guardianships are assigned in several situations, including when parents have abandoned a minor, when a minor’s parents have died, or when a minor’s parents are incapable of caring for the minor. A legal guardian is most often a family member, close friend, or other person the court feels will act in the minor’s best interest. As the legal guardian, this adult may be granted physical custody of the minor. It is also possible that he or she may act as a financial guardian who exercises control over the minor’s property until the minor comes of age. The guardian is responsible for ensuring that their ward’s physical and personal needs are met, while the parents usually continue to provide financial support.

Guardianship of an Elderly or Incapacitated Person

If a person has suffered an injury or mental illness or been diagnosed with a degenerative disease, it is possible that they will be unable to make important financial or medical decisions for themselves. When these situations arise, a legal guardian must be appointed to act in the individual’s best interest.

Courts appoint guardians, sometimes called conservators, to protect the interests of elderly or incapacitated individuals. Because creating a guardianship may deprive the affected individual of some personal rights, steps must be taken to protect the person before a guardian can be appointed. First of all, the person has a right to be notified and represented by a lawyer before a guardianship proceeding.

During the proceeding, the individual can attend to present evidence and speak to witnesses. If the court appoints a guardian, that guardian is encouraged to respect the ward’s wishes and give the ward as much autonomy as possible. Depending on the situation, guardianship of an elderly or incapacitated individual may involve guardianship of the person, the estate, or both.

If your loved one is in need of a legal guardian to look after their interests, you should know their rights and options. Contact Queens probate lawyer Richard Cary Spivack, and get the answers you need.