Definition of Guardianship?
A guardianship is a legal relationship that gives one or more individuals the authority to make personal and health-related decisions on behalf of someone who has been deemed incapacitated or incompetent by a court. A guardian will typically make decisions about another person’s medical treatment, safety, and living arrangements. Guardianship is a court action appointing someone to make decisions for you when you become incapable of making your own decisions due to an illness or when an incapacity endangers your health or safety. Guardianship may severely limit your freedom to decide how to live your life.
Types Of Guardianship
Choosing a guardian itself is difficult, and sometimes an emotional decision. Understanding the different types of guardianships may make it easier to identify the right option.
Temporary Guardianship
Temporary guardianship is granted when:
- Parents or other current legal guardians agree to allow someone else to temporarily care for their minor child or other loved one; or
- A court assigns temporary guardianship to someone who petitions the court, usually in a situation where there is an emergency medical concern or concerns about the person’s wellbeing.
Unlike a permanent guardianship, a temporary guardianship generally has an end-date or is only designed to last until a permanent determination is made. The same is true with temporary guardianship of an adult. The guardian can make decisions on their behalf, such as whether to undergo certain medical procedures or to move them into a long-term health facility. This lasts until the court decides the next step which includes whether to make the guardianship permanent, name someone else as guardian, or restore the individual’s rights.
Emergency Guardianship
Emergency guardianship means a temporary guardian makes decisions on behalf of a ward who is in immediate danger, such as requiring emergency medical care or removal from an abusive or dangerous situation. When a court receives a petition for emergency guardianship, they may grant it after a short hearing or even without a hearing. An emergency guardianship may only grant limited powers pending a full hearing to grant permanent guardianship.
Guardianship of a Minor
This guardianship is the legal process for one or more adults to take over the care and upbringing of a minor, generally a child under the age of eighteen. The guardianship process gives the guardian the right to make decisions and authorize medical care, handle school enrollment, and to take other necessary actions.
Adult Guardianship
Adult guardianship generally only applies when there is some reason why the ward cannot make decisions about their own welfare, medical care, or financial affairs. Situations include when the person has a mental healthcare need, a cognitive condition, or an age-related decline in abilities. Courts approach guardianship for an incapacitated adult as follows:
- Granting full decision making responsibility for both the person and their financial affairs
- Granting limited guardianship, which only includes the authority to make decisions about medical care, legal affairs, financial accounts, or other specified limited needs
- Granting guardianship of the person’s various needs to more than one person, such as naming you the guardian of the financial affairs and giving another family member decision-making ability over medical care.
Determining Incapacity
Courts use the phrase “incapacitated person” to describe a person who may become the ward of a guardian. When an adult needs someone else to make decisions on their behalf, it is generally because they are incapacitated in some way. If there is no proof that an adult is incapacitated in a way that puts them in danger of harm, it is unlikely that the guardianship proceeding will be successful.
Guardianship of a Person
Guardianship of a person may refer to a type of limited guardianship that gives the guardian the responsibility for making decisions for the ward’s medical care, daily life, and other personal matters. Some people may use “guardianship of a person” to refer to someone who has full decision-making responsibility for either a child or adult.
Advantages of Guardianships
Becoming a guardian of another person has some important benefits that really can’t be granted in any other way, which is why many people seek out this legal status. Specific advantages include:
Security
Once you are named as guardian, you can be confident that you will be able to provide care for your ward for years to come.
Legal Rights
You will have the legal right to make financial, medical, and other decisions on behalf of your ward (in most cases).
Social Benefits
In many situations, especially with minor children, it is necessary to have a parent or legal guardian sign something. Being named guardian will help to avoid any unnecessary complications or delays with these common requests.
Disadvantages of Guardianships
Of course, there are some times when a guardianship is not appropriate due to certain disadvantages, such as:
Longer Term Commitment
If you are only providing care for an individual for a limited amount of time, a guardianship is not going to be the right option. Guardianships are long-term commitments.
Responsibility
Becoming a legal guardian comes with a lot of responsibilities. Rather than just taking care of someone because you want to, you will now be legally obligated to provide this care.
Legal Complications
As with any legal matter like this, you’ll have to go through the process of working through the courts to get approved as a guardian.
Get Help
Do you have more questions about Guardianship? Our attorneys are ready to give you all the help and answers you need. Call us today.
FAQs
Is guardianship better than power of attorney?
Guardianship makes legal decisions for another person that pertain to their health and lifestyle. Unlike power of attorney, you are not permitted to manage their finances or legal matters but are authorised to make decisions relating to the person’s accommodation and medical care.
Does guardianship overrides parental rights?
Yes, a guardianship can override parental rights to the extent ordered by the court.
Do guardians get paid?
Yes, a guardian is generally paid an amount which is not more than five percent of the ward’s yearly income.
