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Estate Planning Lawyer

Guardianship in estate planning

When a person is granted the legal authority to make decisions for another, they may be granted the title of “guardian”. The person who has guardianship over them, is referred to as the “protected person”. The guardianship title is appointed to that person by a court to make decisions about affairs related to their estate and other financial areas.  

What circumstances warrant guardianship?

Under normal circumstances, the parents of a child have the legal right to make decisions for their children. When an adult is unable to make decisions for themselves, someone may be appointed by the courts as their guardian.

In the event that there is no parent available to make decisions for their child, a guardianship may be warranted. In another example, if a child happens to inherit assets from someone, (cash accounts or life insurance), a guardian can protect the child, or assist in decision making regarding such assets until the child is a legally of-age adult.

When an adult becomes incapacitated, or otherwise deemed incapable of making their own decisions, a guardianship may be necessary. Other than incapacitation, factors such as mental illness, disease, deficiency, or incapacity, may serve as grounds to appoint a legal guardian. However, there are alternatives to guardianship that may better serve the person better than a court-ordered guardianship.

Filing for guardianship

In most cases, a guardianship case should be filed in the county where the proposed protected person has resided for at least the past six months. It is strongly recommended to seek legal assistance from a lawyer who is licenced in the state in which the proposed protected person has resided for the past 6 months. An estate planning lawyer will also be able to offer recommendations on where to file, if the proposed protected person has resided in another county or state in the six months prior to applying.

Guardianship vs Conservatorship

Conservatorship

A conservator is appointed by courts to make financial decisions for the protected person. In most cases, a conservator may collect conserved assets. The conservator may also be responsible for paying bills, making investments, and performing other financial processes. They may also take part in duties related to estate planning for the protected person, which includes the reserved right to amend or revoke the protected persons will. The right to amend or revoke the protected person’s will is contingent upon court approval. 

Guardianship

A guardian is a person appointed by courts to perform duties primarily related to personal care, control, and custody of the named protected person or persons. A guardian also is responsible for making decisions regarding where the protected person will live and medical decisions, such as treatment.

When it is deemed necessary, it is important to make well-informed decisions regarding filing for guardianship, or conservatorship in the state where the proposed protected person resides. For example, if the proposed protected person resides in Minnesota, an estate planning lawyer from a firm like Johnston | Martineau PLL will be able to advise clients in need of conservatorship, or guardianship, on the best course of action for their unique situation.