Estate Planning FAQ: What is a Legal Guardian?

In estate planning, a guardianship creates a legal relationship where a guardian takes responsibility for someone known as the ward. That someone can be a child or a disabled person.

Courts appoint legal guardians who gain the authority to manage a ward's personal or financial affairs. Wards, be they minors or incapacitated individuals, need someone to meet their needs and manage their assets. Guardians can oversee either personal, financial, or both aspects of a ward's life.

Legal guardianship is crucial in estate planning as it ensures the care and protection of wards if the primary caregivers are unable to fulfill their roles. It allows you to designate trusted guardians in your will or estate documents. This provides certainty and stability for the future of your dependents.

Who can serve as a legal guardian?

Competent adults over 18, often relatives of the ward, can serve as legal guardians. Courts evaluate factors such as the potential guardian's availability, financial stability, criminal record, health, age, mental competence, and motivations when assessing their suitability. In estate planning, adults can designate their preferred guardians for themselves or minor children in case of incapacity.

When is a legal guardian required?

Courts appoint guardians in scenarios such as:

• Adult incapacitation that requires decision-making support.
• Children requiring care due to parental unavailability caused by death, unfitness, or extended absence.

Wards require guardians when they lack the legal capacity for independent action. Without capable parents, children always need guardians.

How is legal guardianship decided?

During guardianship proceedings, courts appoint legal guardians. If parents have chosen guardians in their wills or estate plans, courts typically honor these choices unless the guardian is unfit or unavailable. Courts may also assign a property guardian to manage a minor's substantial inheritance.

Distinguishing between legal guardianship and legal custody is crucial. Legal custody is often relevant in parental divorces or separations. It grants decision-making power over a child's welfare. This custody can be joint or sole, regardless of physical custody arrangements.

How does someone prove they're eligible for legal guardianship?

To prove legal guardianship, an individual typically needs to provide specific legal documents that have been issued and authorized by a court. This typically includes:

• Court order of guardianship: This is the primary document that establishes a person as the legal guardian of a ward. It's issued by a court after the completion of the guardianship proceedings and clearly states the name of the guardian and the ward, as well as the extent of the guardian's authority and responsibilities.
• Letters of guardianship: These are official documents issued by the court clerk that certify an individual as the appointed guardian. They serve as proof that the person has the legal authority to act on behalf of the ward in various matters, such as medical, educational, and financial decisions.
• Guardianship certificate: Some jurisdictions issue a guardianship certificate as a formal document that identifies someone as a legal guardian.
• Additional supporting documents: Depending on the situation, the ward's birth certificate (in the case of a minor), medical records indicating the ward's incapacity (for adult wards), or death certificates of parents (in the case of orphaned minors) might be required to support a guardianship claim.

What is a professional guardian?

Professional guardians, as opposed to family or friends, receive payment to care for elderly or incapacitated individuals lacking suitable personal guardians. These guardians ensure the physical well-being of their wards by managing their daily care needs. This includes arranging for food, clothing, and shelter, and ensuring proper medical care is provided.

They're also responsible for managing the financial affairs of their wards. This involves overseeing bank accounts, paying bills, and managing investments or assets to ensure the ward's financial health and stability. They may also make legal and healthcare decisions, as well as monitor service providers.

An estate planning attorney can help with the process

Getting legal guardianship can be a complex process, which is why it's best to consult with an experienced estate planning attorney who can ensure that the process goes smoothly. They can help appoint a legal guardian for a child or navigate guardianship proceedings for a minor or incapacitated adult, ensuring their protection and care. To learn more, contact The Law Firm of Brown & Jensen and schedule a free consultation. We'll be glad to answer any questions you have.