What You Should Know About Setting Up a Guardianship

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

What is guardianship?

Guardianship (sometimes called conservatorship) is alegal process designed to protect the rights and property of individuals whocannot look after their own well-being due to age, disability, or incapacity. Acourt appoints a legal guardian for the person in question (the ward), and theguardian is granted the legal authority to make personal and financialdecisions on behalf of the individual. In the case of minors, the guardianshipusually ends when the ward turns 18, but in cases of age and incapacity theguardianship usually remains in place throughout the individual’s life.

Guardianship of a Minor

A court may appoint an adultguardian to care for a minor who is not the child of the adult. Guardianshipsare assigned in several situations, including when parents have abandoned aminor, when a minor’s parents have died, or when a minor’s parents areincapable of caring for the minor. A legal guardian is most often a familymember, close friend, or other person the court feels will act in the minor’sbest interest. As the legal guardian, this adult may be granted physicalcustody of the minor. It is also possible that he or she may act as a financialguardian who exercises control over the minor’s property until the minor comesof age. The guardian is responsible for ensuring that their ward’s physical andpersonal needs are met, while the parents usually continue to provide financialsupport.

Guardianship of an Elderly or Incapacitated Person

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

Courts appoint guardians, sometimes called conservators, toprotect the interests of elderly or incapacitated individuals. Because creatinga 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 lawyerbefore a guardianship proceeding.

During the proceeding, the individual can attend to presentevidence and speak to witnesses. If the court appoints a guardian, thatguardian is encouraged to respect the ward’s wishes and give the ward as muchautonomy as possible. Depending on the situation, guardianship of an elderly orincapacitated individual may involve guardianship of the person, the estate, orboth.

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