Things to Know About Guardianship

Guardianship is a legal relationship between an individual (guardian) who has been given legal authority and duty on behalf of another individual (ward) who lacks sufficient capacity to manage his or her own affairs or make and communicate important decisions.

Important Guardianship Terminology

Some important terminology includes:



• Disabled person- a person 18 years or older who is not fully able to manage his or her person or estate because of mental deterioration, physical incapabilities, a mental illness, a developmental disability, a gambling or drug addiction, or fetal alcohol syndrome.

• Ward- the person who has been declared by the court to be disabled and the person for whom you have been appointed as guardian

• Guardian ad Litem- a person, typically an attorney, who has been appointed by the court to look out for the ward’s best interests

• Guardianship order- the court setting forth your powers and duties as the guardian

• Letters of Office- court documents which confirm your appointment

Power of Attorney vs. Guardianship

There is a distinct difference between guardianship and power of attorney. Powers of Attorney are set in place for instances in which the individual cannot make a decision for themselves because they are not capable. Guardianship is being appointed decision-maker for certain aspects because that person does not have the capabilities to make that decision on their own already.

Guardianship Types

There are different types of guardianship, depending on the situation.

• Guardianship of the estate- This person will deal mainly with finances. For example, a bank can serve as guardian.

• Guardianship of the person- This person is responsible for the choices and decisions of that person. You are standing in the shoes of that person and responsible for knowing where they live, if they are eating, that they are taking care of themselves, etc.

• Plenary guardianship- This person is the long-standing guardian. A parent may become this type of guardian for a disabled child.

• Limited guardianship- This limits powers to certain circumstances. The individual may have capacity in some areas but not in others.

• Temporary guardianship- This often comes before plenary and often sought for in emergency situations. For example, if your mother is leaving the hospital and you have no legal right to assist her where to live or any other situation, a temporary guardianship is necessary.

• Successor guardianship- This person is named after the guardian in place. This is usually when making end of life plans. You would name whoever after yourself.

• Testamentary guardianship- This person is named per a will, estate plan, etc. They are often appointed preemptively for future plans.

Powers of Attorney

Powers of Attorney are good as soon as they are put into effect. When appointing a power of attorney, the subject or the principal gives the agent or the person being appointed the role in the best interest of the principal.

There are different types of Powers of Attorney:

• Financial property- agent ability to make financial decisions on behalf of the principal

• Healthcare- both financial and healthcare common

• Mental health- mental health treatment

• Education- child with an IEP, the parents may appoint grandma to make those decisions

• Representative payee- accepting social security benefits on behalf of the principal

Capacity in Powers of Attorney

A common question asked, “Does the principal have “capacity” to sign powers of attorney?” The answer is yes. In regard to power of attorney, you have to have capacity. With guardianship, you cannot have guardianship without capacity. 

If they have the capacity for powers of attorney...

• Will he/she sign them? If the principal does not want to, they do not have to if they have the capability. In a guardianship situation, you are past that point of capacity because that person is no longer able to sign.

• Will they allow you to act or will terminate/void Pas as soon as… when…? They are able to change it as long as they have capacity to do so. If you find that someone is.

• Does not prohibit him/her? If you are writing a power of attorney for financial property, it does not prohibit the power but giving them the power to make those decisions when that individual no longer has capacity.

What if...

Q: The individual has the capacity to sign but refuses to sign or does not want YOU to sign as an agent?

A: As long as that person has the capacity, they have the right to refuse. If they do not have the capacity, guardianship is more appropriate.



Q: They do not have the capacity to sign?

A: Then guardianship is needed, not power of attorney. If they do not have the capacity, guardianship is already needed in place of power of attorney.

Basic Duties as the Guardian of a person

When you are the guardian of a person, you are responsible for the personal and medical care of the ward and may have the actual physical custody of the ward, the ward’s minor children, and any adult children who are dependent on the ward for support and care. You will also need to make decisions for the ward relating to personal care, healthcare, and living arrangements. You also may need to file written reports.



There are some limitations to being the guardian of the person. There are specific roles the guardian cannot do without permission from the court. A court order is required before you can place the ward in a residential facility, like a nursing home, and required before you consent to a sterilization process. A court may authorize the guardian to petition for divorce on behalf of his of her ward if the court finds it is in the ward’s best interest; it may also authorize the guardian to consent to the ward’s marriage.

Basic Duties as the Guardian of the Estate

If you are the guardian of estate, you are expected to file an inventory of the ward’s assets. Be sure to keep the ward’s assets and income totally separate from your own assets and property. You will have to open an estate checking account with your name as a guardian for the receipt of the ward’s regular income and for you to use for payment of the ward’s bills. You will also have to contact all sources of the ward’s income, such as social security administration, Department of Veterans Affairs and/or any pensions or employers and request that the ward’s checks be sent to you or the estate checking account.

Some limitations to being guardian of the estate. Some specific things will need to be given special permission from the court. You will have to file a petition with the court before you.

• Transfer or sell any of the ward’s personal property or real estate
• Mortgage real estate or take loans out on the ward’s behalf
• Make any gifts from the ward’s estate
• Expend any large sums of the ward’s money for expenses
• Distribute any money to yourself or anyone else for guardian fees

Terminating responsibilities of the Guardian

The only way to terminate or modify the terms of the guardianship is through the court. These circumstances may include the death of the ward or guardian, resignation of the guardian, and restoration of the war’s rights (terminating the adjudication of disability).

Being a guardian to a person, estate, etc. is a big responsibility. It is important to understand the duties and responsibilities surrounding the ward and their well-being.

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