Caring for one’s own financial situation is a key part of one’s own independence. But there are some cases where a person needs help making legal and financial decisions. That’s where the concept of guardianship comes in. Guardianship is not simply based on age or acting as a chaperone or caretaker for someone before they turn 18. It’s often the case that adults who are older than 18 need legal and financial guardians as well. While reaching out to a financial advisor could be a long-term solution for getting expert financial advice, learning the ins and outs of adult guardianship is a useful first step.
Guardianship Definition and Need
Guardianship refers to getting the legal authority to make decisions for someone else. A court appoints this person, known as the “guardian.” The person whom the guardian oversees is called the “protected person” or sometimes the “ward.”
We normally think of guardianship as only applying to parents or guardians who make decisions for a child or children under the age of 18, because by law minors are incapable of making their own decisions.
It’s usually presumed that adults have the capacity to make decisions for themselves. But adult guardianship may be necessary when those who are ages 18 and older are unable to do so, such as if an adult is incapacitated. This means that the person is unable to take care of themselves – and can occur for a variety of reasons, including mental illness, mental deficiency, disease or mental incapacity. This can happen to anyone from a younger adult to someone who is significantly older and already nearing retirement.
Types of Guardianship
Here are three ways to approach adult guardianship depending on the ward’s needs:
Guardianship over a person. This means that the guardian is responsible for the well being and care of the protected person, and can make personal and medical decisions for the person. These include healthcare decisions, decisions about living situation and sometimes decisions regarding education and schooling.
Guardianship over an estate. This setup allows the guardian to make financial decisions for the ward’s full estate. Only guardian will be allowed to spend or sell any of the protected person’s assets, and only by court order.
Guardianship over a person and estate. This approach is a combination of the above. The guardian will be responsible for all personal, medical and financial decisions of the protected person.
It is important to remember that the guardian does not have complete control or absolute control over the protected person’s finances and/or assets. Court approval is always required. Even the ward’s money cannot be access without a court order.
How to Obtain Legal Guardianship
A professional financial advisor and/or legal advisor are the best people to consult when going through the process of obtaining a legal guardianship. It’s also important to remember that certain details and steps vary by state.
Generally speaking, however, the first step is to file a written petition with a court in order to request that a guardian (for a person, their property or both) be appointed. The would-be protected person must receive notice of the petition and has the right to contest the request. The court may also require a visitor to make an independent investigation to determine whether guardianship is the appropriate way forward, or whether the would-be protected person or ward needs to be examined by a medical or other qualified professional. Finally, there is a formal hearing before a court, during which the judge weighs all evidence and makes the appointment, rejects it or orders some other solution.
How Long Does Guardianship Last?
Most often, adult guardianship will last upon the death of the protected person. It’s very important to note that in some cases, the judge who appoints the guardian may not appoint someone that the ward already knows and trusts – the guardian may turn out to be an independent professional with whom the ward does not have any existing relationship. This is something to consider when thinking about whether to dive into estate planning sooner rather than later. Getting a head start might help you start to bring your affairs in order earlier, and give you time to consider some alternatives.
Alternatives to Guardianship
If you or a loved one is fortunate enough to still be able to make your own financial and health decisions now, there are some other options to consider that could help you avoid or limit the difficult decisions and lengthy process that surround adult guardianship:
Drafting a living will or living trust
Setting up a durable power of attorney
Setting up a medical power of attorney
Understanding whether you need an advance healthcare directive
Understanding what it means to have a healthcare proxy
Determining your overall estate planning needs
Having to give over all control of your personal and financial decisions to another person can be a frightening thought, but an important one to consider in advance as you look towards other, more immediate money goals. Adult guardianship can be an involved and lengthy process, but there are alternatives available if it’s not in your best financial interests.
Tips for Preparing a Long-Term Financial Plan
Seek out professional financial advice. You wouldn’t run a marathon without a trainer, would you? So why not apply the same logic to your long-term money goals? Finding a financial advisor doesn’t have to be hard. SmartAsset’s free tool matches you with up to three financial advisors in your area, and you can interview your advisor matches at no cost to decide which one is right for you. If you’re ready to find an advisor who can help you achieve your financial goals, get started now.
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