Guardianships

A guardianship is a legal relationship between one person, the guardian, who is appointed to make decisions on behalf of someone else, the ward. Most wards are either medically incapacitated adults or minor children.

The responsibilities of a guardian may include:

• Medical: Deciding on treatment, providing consent, making payments, monitoring outcomes, and making end-of-life decisions.
• Housing: Determining the best option for housing, arranging payment, and oversight of housing service providers.
• Financial: Paying bills, keeping records, and managing real estate and other property.
• Legal: Arranging and providing consent for legal matters and legal representation and reporting to the court on their guardianship status and activities.

Courts can grant guardians broad or limited authority over their wards. The responsibilities of guardianship may be divided among two or more individuals. An example of this is when one guardian is appointed for the person to act as a general caretaker, and a second guardian is appointed for the estate to handle financial matters and decisions.

Guardianship of your senior parents

As a parent ages, it often becomes necessary for various reasons for their adult child to assume responsibility for some of their affairs, especially financial and medical. In many cases, the aging parent is receptive to this assistance and no formal legal relationship need be established.

Other times, however, the parent may be unable to accept or understand that their judgment is compromised and may be resistant to what they view as interference with their lives. This is often a factor in cases involving Alzheimer’s and dementia.

If your parent exhibits impaired judgment, or has been diagnosed with Alzheimer’s, dimentia or another cognitive ailment and is resistant to letting you exercise oversight or make decisions on their behalf, you may need to consider legal guardianship. Watch for warning signs, which include:

• Forgetting to take medication.
• Not exercising good hygiene or dietary practices.
• Leaving the stove or oven on.
• Keeping clutter in their home to the point of compromised safety.
• Driving despite an inability to safely do so.
• Impaired financial judgment, such as falling victim to scammers or buying things they do not need and cannot afford.

A general durable power of attorney is an alternative to guardianship in some cases. In order to legally grant power of attorney, your parent must currently have the mental capacity to do so. Therefore, this is an option only in cases where cognitive impairment has not reached an advanced state. Our attorneys can help you understand what your options are and how to choose the best one.

Guardianship of minor children

If you have minor children, your estate plan should specify a guardian whom you trust to care for them in the unlikely event you become unable to do so. This is usually set forth as a provision of your will.

If both of a child’s parents die or become otherwise unable to raise them, the court will appoint a guardian, usually a family member. In order for your preferences to be considered by the court as to which family member (or trusted friend) should be guardian of  your minor children, it is necessary for you to make your preferences known in a legally binding way. 

If you have someone else’s children living under your care for an extended period of time, you may need to seek legal guardianship in order to make the decisions necessary to provide for their health care, education, and other needs.