Information About Guardianships
A guardianship is a powerful designation that can be very beneficial to an individual in need of protection, known as a ward. Many people have questions about guardianships and what protections they specifically offer. We invite you to read these answers to frequently asked questions about guardianships.
If you are interested in learning more about setting up your own guardianship, the law office of Mercedes R. Wechsler, P.A., can help.
Why would someone need legal assistance for guardianship issues?
Often, a guardianship is established to protect children and their property if a parent dies and children are left with assets, in particular if the parents were never married. A child is, by definition, an incapacitated person. Guardianships for children are also set up if a child receives proceeds from a lawsuit. In other cases, a guardianship may be set up to care for an adult who is incapacitated in some way.
What types of decisions can a guardian make on behalf of another person?
This varies depending on the type of guardianship:
- If it is guardianship of a person, then the guardian can make health, mental health, living arrangement or education decisions on behalf of the ward.
- If it is guardianship of property, then the guardian makes decisions that affect the assets of the ward. A court order is needed for any distribution from these assets or any sale of the assets. If the ward needs to pay for health insurance, for example, then the guardian of property of the ward would have to ask for permission from the court to pay for the insurance. There are reporting requirements to let the court know how money is spent.
Are there different ways in which a guardian can be appointed?
Yes. A guardian can be appointed in several ways:
- An individual seeking a guardian can petition for a guardian to be appointed.
- An individual wanting to be a guardian who is also a relative can petition to be appointed guardian.
- An individual can name a guardian in a will. This is most often to provide care for any minor children left behind after a parent has died.
The desired guardian must pass a background test and be fingerprinted — even if that person is a spouse. Someone who has been convicted of a felony cannot be a guardian.
Under what conditions can a guardianship of a child be granted?
If a child comes into an inheritance from a parent and the child’s parents were not married, a guardian must be appointed to oversee the money and property that was inherited. Also, if the child is disabled either mentally or physically, a guardianship may be needed.
Guardianships are not necessarily permanent. Once a child turns 18, a guardianship may no longer be needed. If the ward has a mental health issue that has been treated for a period of time and the ward no longer needs treatment, it is possible to petition to have the guardianship terminated.
What are some of the responsibilities of a legal guardianship? Do they differ for children vs. incapacitated or disabled people?
A guardian must arrange medical care, mental health care and personal care services. The guardian may also help choose a residential setting that is appropriate for the ward. The guardian will present a plan to the court detailing how the ward will be taken care of. The guardian will also manage the finances of the ward, including living expenses, medical expenses, taxes and more. A guardian can be appointed if a child receives money as a settlement or jury award in a lawsuit.