Frequently Asked Questions
What is guardianship?
Guardianship is a relationship created by state law in which a court gives one person or entity (the guardian) the duty and power to make personal and/or property decisions for another. Guardianship involves a formal court process of appointment.
What is a guardian?
A guardian is a person, institution or agency appointed by a court to manage the affairs of another. The guardian may manage personal affairs and/or money and property. Each state has specific laws that govern guardianship proceedings and the guardian’s activities. States also separate guardianship for minors and for adults with disabilities in the law. Your local court will be able to direct you to the divisions that oversee adult guardianship and/or minor guardianships.
Do all states use the same terms?
Terms can vary by state. In many states, a guardian appointed to make decisions about money and property is called a “conservator.”* Other terms that mean the same thing are “guardian of the property” and “guardian of the estate.” A “guardian” – or “guardian of the person” – is someone appointed to make decisions about health care and other personal affairs. The same person could be appointed as both guardian of the person and guardian of the property (conservator), or these roles could be filled by two different people or entities.
A person who has been adjudicated to need a guardian in many states is called a “ward” or “an incapacitated person” -- or could be called a “conservatee” or “protected person.”
A person who helps the court investigate the need for a guardian is called a “court visitor,” “court investigator” or “guardian ad litem.”
Check with your local court, bar association or state guardianship association to learn the terms in your state.
*(Note that in two states (CA & CT) the term “conservator” refers to guardianship of the person and/or of property of adults.)
Who may need a guardian?
To have a guardian appointed in most parts of the United States, a person must be demonstrated to lack the capacity to make or communicate decisions concerning personal or financial matters. States generally use some combination of four elements to determine this:
- a medical condition, such as mental illness, intellectual or developmental disability, physical incapacity, or chronic intoxication;
- a lack of functional ability – that is, lack of ability to care for self or manage finances;
- a cognitive impairment, which means a difficulty in receiving and evaluating information; and
- a likelihood that harm will come to the person if a guardian is not appointed.
The laws of the state where the person resides will give the specific elements governing the definition of an incapacitated person.
How is it determined that a person may need a guardian?
The fact that someone has some sort of diagnosis or disability does not automatically equate to the need for a guardian. The primary test for determining the need for guardianship focuses on the ability to make decisions, and to communicate the decisions once made. The essence of decisional capacity for the guardianship determination concerns the following questions:
- Does the individual understand that a decision needs to be made?
- Does the individual understand the options available in making a decision?
- Does the individual understand the potential consequences of the decision and options?
- Can the individual direct the decision to appropriate parties?
The areas of decision-making on which most guardianships are focused are: living conditions, medical care, vocational and educational services, ancillary professional services, caring for dependents, and managing finances and property.
Who can act as a guardian?
The following qualifications are fairly universal:
- Individuals, including family members and other - 18 years of age, not convicted of a felony, and not under or in need of a guardian themselves.
- Non-related professional guardians, 18 years of age, not convicted of a felony, and not under or in need of a guardian themselves.
- A public or private institution, not supplying housing.
- Financial institutions (for money and property matters only.)
In some states there is a statutory preference for family members as guardian; in others it is at the discretion of the court. More states are requiring that individuals appointed as guardians have a minimum training experience. Training is sometimes provided by video, books or attendance at a course on guardianship, which may last anywhere from two hours to 40 hours.
For specifics about who may be a guardian in various states, review your state guardianship statute.
Are guardians licensed?
Each state has different licensing, registration and certification laws, but the nationwide standard for guardians is a certification through the Center for Guardianship Certification
. Not all states require guardians to be licensed or certified.
How can I find a guardian?
The National Guardianship Association’s website offers a search of its members
. Not all guardians are members of the National Guardianship Association, but many are.
What are the duties of a guardian?
Guardians must make decisions about the care and/or money and property on behalf of the individual. In doing so, guardians are to take the person’s needs, values and preferences into consideration. In making decisions about money and property, a guardian is a “fiduciary” – which means the guardian must act in good faith with a very high degree of care and accountability, and must be trustworthy and honest at all times.
What is a “limited guardianship”?
A limited guardianship is one in which a judge determines an individual is able to make decisions about care and/or money and property in some but not all areas. The judge appoints a guardian to make decisions only in those areas in which the person is unable to make decisions. The court order specifies the scope of decisions the guardian has authority to make. Therefore, the individuals retains the right to make decisions in other areas.
Does the court monitor guardians after they are appointed?
Yes, states require guardians to file reports with the court. State laws vary, but generally the guardian must file reports annually. A guardian with responsibility for money and property must file accurate and detailed accountings for court review, and often must submit accompanying receipts. If the court finds a problem in the report, the court may send an investigator to gather further information, and may require the guardian to come to court, or may sanction the guardian.
Does guardianship ever end?
Guardianship is normally a long-term relationship that ends with the death of the individual, once the court relieves the guardian of responsibilities. However, the court may modify, revoke, or terminate the guardianship if the person under guardianship is able to demonstrate to the court his or her ability to make and communicate decisions. The procedures governing the modification of guardianships and restoration to capacity vary, but each state addresses the issue.
Are there other decision-making options besides guardianship?
Guardianship is highly intrusive, and results in a loss of fundamental rights. Thus, it should be used only as a last resort when all other alternatives have been examined. Some of the less restrictive options include:
- Medical powers of attorney, in which someone else is appointed to make medical decisions when a person can no longer do so;
- Living wills in which a person provides instructions on future care;
- Health care advance directives in which a person appoints a decision-maker and can give instructions as well;
- State health care surrogate laws, which set out a hierarchy of family members and others who may make certain health care decisions for an individual who cannot do so and who has no guardian and no health care advance directive;
- Durable financial powers of attorney in which someone else is appointed to make specified decisions about money and property when a person can no longer do so;
- Trusts, in which a person gives legal title to another to manage money or property for the benefit of someone else; and
- Representative payees, which are individuals or entities appointed by government agencies. such as Social Security to manage government benefits for an individual who cannot do so.
Get additional information from your local bar association, area agency on aging, and local social service agencies. Also, click here
to read about health care and financial decision-making without guardianship.