What Does it Mean to Be A Guardian?

There may come a time in your life when a person you love—whether it’s a parent, grandparent, a spouse, a family member with a disability, or even a minor child—becomes unable to care for themselves due to physical or mental limitations. At that point you may find yourself in the position of becoming that person’s guardian.

What is a guardian?

A guardian is a legal designation that carries with it a lot of weight and responsibility. The person who becomes a guardian has a legal duty to act in the best interests of the individual. The duties of a guardian, generally speaking, are to oversee the welfare and safety of the person under guardianship, and to attend to the financial needs of the individual.

The duties and responsibilities of a guardian vary depending on what type of guardianship is granted by the court. The court can order either a full (plenary) or limited guardianship. Under full guardianship, the guardians have full authority over their ward’s personal and financial affairs. Wards lose the right to manage their own finances, buy or sell property, make medical decisions for themselves, get married, vote in elections, and enter into contracts.

If a court assigns a limited guardianship, then the guardian’s powers and duties are limited so that their wards retain some rights depending on their level of capacity.

What responsibilities does a guardian have?

There are many things that guardians must do to make sure their ward is protected. For, example a guardian must provide the elder with:

• Proper care, maintenance, education, and support.

• Food, clothing, shelter, and other necessities. 

• Access to appropriate medical, surgical, dental, psychiatric, and psychological care.

• Access to education and occupational training, if appropriate.

In addition, a guardian assumes full responsibility for paying bills and debts from the ward's accounts and ensuring any income gets properly deposited.

Is there anything that a guardian may not do?

There are many things that a guardian cannot do without first getting the court’s permission, especially when it comes to the protected person’s finances. A guardian may need to seek permission to do some of the following:

• Place the protected person in a residential long-term care facility.

• Spend or invest the protected person’s money in any way not authorized by the court, especially in large amounts.

• Sell the protected person’s home or assets. 

• Make or change the protected person’s will or change any beneficiaries.

• Terminate the guardianship. The guardian usually cannot be released from his or her duties unless the protected person has died or has regained capacity.

How does a person become a guardian?

The establishment of guardianships will differ to some extent based on state laws and local court procedures. However, the process involves some common steps, including submitting a petition to initiate a court proceeding. The petition should include:

• The reasons why a guardianship is being sought.

• A description of the nature and extent of the elder’s limitations to care for herself/himself or to manage her or his financial affairs.

• The guardianship powers being requested and the duration of the powers.

• The nature and estimated value of assets including the real and personal property in the estate, and the estimated annual income (conservatorship cases).

The court will then schedule a hearing to decide if guardianship is necessary. The court may also need to appoint an attorney to represent the alleged incapacitated person. If guardianship is ultimately needed, the court will also outline how often the guardian must report to the court to show that the ward is being properly cared for and finances are being handled responsibly.