Guardianship

Guardianship is a legal process in the United States that gives legal rights to a guardian to manage the personal, financial and medical needs of a person who cannot do so on their own. Guardianships may be for adults who are incapacitated or for children whose parents are not able to care for them.

Terry Turner, writer and researcher for RetireGuide
Fact Checked
Fact Checked

Our fact-checking process starts with vetting all sources to ensure they are authoritative and relevant. Then we verify the facts with original reports published by those sources, or we confirm the facts with qualified experts. For full transparency, we clearly identify our sources in a list at the bottom of each page.

Cite Us
How to Cite RetireGuide.com's Article

APA Turner, T. (2022, July 26). Guardianship. RetireGuide.com. Retrieved August 14, 2022, from https://www.retireguide.com/retirement-planning/elder-law/guardianship/

MLA Turner, Terry. "Guardianship." RetireGuide.com, 26 Jul 2022, https://www.retireguide.com/retirement-planning/elder-law/guardianship/.

Chicago Turner, Terry. "Guardianship." RetireGuide.com. Last modified July 26, 2022. https://www.retireguide.com/retirement-planning/elder-law/guardianship/.

What Is Guardianship?

Guardianship is a legal process that allows a court to appoint a guardian if a person is no longer able to communicate or make sound choices about their personal or financial affairs. The guardian is given the legal right to make personal, financial, medical and other decisions for the person placed into guardianship.

Guardianship is similar to conservatorship, but there are some differences between the two.
  • Guardianship: This typically applies to selecting a person to have legal responsibility for your children in the event something happens to you. It also may apply for the care of certain adults.
  • Conservatorship: This term most often applies to an incapacitated adult, although some states use the term “adult guardianship” instead.

Both conservatorship and guardianship are guided by state laws that may vary from state to state.

Guardianship and conservatorship should both be included as important parts of your estate planning.

Typically there are two types of guardianship to consider — guardianship of the person and guardianship of the estate. In each type, the guardian is responsible for different aspects of the decision-making authority over the life of the person in guardianship, who is typically referred to as a “ward.”

Types of Guardianship
Guardianship of the Person
The guardian is responsible for taking care of personal affairs of the ward.
Guardianship of the Estate
The guardian is responsible for taking care of the financial affairs of the ward.

Sometimes, a guardianship may take on qualities of both types.

Both guardianship of the person and of the estate will have an impact on the individual rights of the person being placed into guardianship. This should be taken into account when considering guardianship arrangements or planning.

What Are a Guardian’s Responsibilities?

A guardian is responsible for coordinating the services, care and other needs of the ward. The exact responsibilities of the guardian are determined by a court and may vary depending on the type of guardianship arranged.

Guardianship of the Person

In guardianship of the person, the guardian is responsible for taking care of the personal affairs of a person placed under guardianship.

Guardian’s Responsibilities — Guardianship of the Person
  • Consent to and monitor education, counseling and other nonmedical services
  • Consent to and monitor medical treatment
  • Make end-of-life decisions
  • Monitor the ward’s residence
  • Provide annual or more frequent reports to a court on the state of the guardianship
  • Provide consent and the release of confidential information — financial, medical and other
  • Accept payments due to the ward on their behalf

Guardianship of the Estate

In guardianship of the estate, the guardian is responsible for taking care of the ward’s financial needs and affairs. The estate refers to the property and financial resources of the ward.

Guardian’s Responsibilities — Guardianship of the Estate
  • Gather, inventory and protect the ward’s assets
  • Get appraisals of the property in the estate
  • Make appropriate disbursements
  • Obtain court approval prior to the sale of any asset
  • Protect assets and property against loss
  • Provide routine reports to a court on the estate’s status
  • Receive and manage income for the estate
Source: National Guardianship Association

Guardianship’s Impact on Rights

Both types of guardianship may have different implications for the ward’s individual rights. In the case of an adult placed in guardianship, a court may limit or remove certain basic rights.

Rights That May Be Removed During Guardianship
  • Buying, selling or managing property
  • Consenting to or refusing medical treatments
  • Determining where you will live
  • Filing lawsuits
  • Getting married
  • Having a driver’s license
  • Making contracts
  • Making end-of-life decisions
  • Owning or possessing a gun
  • Voting
Source: National Guardianship Association

The end goal of a guardianship is to restore an individual’s rights as soon as possible. This is carried out by a court, acting on the information in annual reports the guardian is required to provide.

A court may also restore some rights previously removed while the guardianship continues.

When Should Guardianship Be Considered?

Adult guardianship should be considered if an immediate family member is no longer able to care for themselves or make sound decisions on their own. This may be due to a variety of conditions.

Conditions That May Warrant Guardianship
  • End-of-life impairment
  • Serious medical conditions
  • Serious injury
  • Certain mental health conditions
  • Cognitive decline, dementia, Alzheimer’s disease
  • Financial exploitation

Alternatives to Guardianship

Adult guardianship is often a last resort, but there are several alternatives to guardianship you should consider. These options can be part of your retirement planning process when deciding how to deal with your estate.

You may ask your financial advisor, estate planner or elder law attorney about these options.

Alternatives to Guardianship
  • Community agencies or services
  • Financial durable power of attorney
  • Financial representative or substitute payee (someone able to accept benefit and other payments on behalf of the potential ward)
  • Health care surrogate
  • Joint checking accounts
  • Living will
  • Medical durable power of attorney
  • Revocable living trust or other types of trusts

How Does Someone Become a Guardian?

You must be appointed by a court to become someone’s guardian. Even if a person consents to you becoming their guardian, you will still need a court order to make it legal.

Steps to Becoming a Guardian
  1. Determine which court you should petition. This may require hiring an attorney.
  2. File a petition with the court to become the person’s guardian.
  3. Pay the filing fee with the court. This may be more than $1,000 in some states, but you may qualify for financial assistance.
  4. Await the hearing date set by the court. This may be months in the future.
  5. Answer the court’s questions at the hearing. These will determine if you are qualified to serve as a guardian.

You will also need the consent of the ward or the ward’s parents to become their guardian. If you are seeking to be the guardian of an incapacitated person, you will have to prove medical or other professional documentation that the person is, in fact, incapacitated before a court can consider appointing you as guardian.

Last Modified: July 26, 2022

4 Cited Research Articles

  1. Family Caregiver Alliance. (n.d.). Conservatorship and Guardianship. Retrieved from https://www.caregiver.org/resource/conservatorship-and-guardianship/
  2. National Guardianship Association. (n.d.). What Is Guardianship? Retrieved from https://www.guardianship.org/what-is-guardianship/
  3. New York Courts. (n.d.). Guardianship of an Incapacitated Person (Article 81 Guardianship). Retrieved from https://nycourts.gov/courthelp/Guardianship/AIP.shtml
  4. State of Maine Department of Health and Human Services. (n.d.). Adult Guardianship and Alternatives. Retrieved from https://www.maine.gov/dhhs/oads/get-support/aps/guardianship