What is guardianship?

What is guardianship?

Guardianship is when a court appoints someone to act on behalf of someone else.  A guardian can be appointed for a child (someone under 18), or an adult.  A guardian for a child will be appointed if the child does not have any parents, or the court decides the child’s parents are unable, unfit, or unwilling to care for the child.  A guardian can be appointed for an adult if the court decides the person cannot make decisions for him or herself.  An adult guardianship will be entered if the court believes the person is at risk of serious harm without appointing someone else to make decisions for him or her.

Why is it so difficult to get a guardianship?

Appointment of a guardian goes against two basic principles of our legal system.  First, we assume the parents of a child should be the ones to raise the child.  Second, we believe every person has the right to make decisions for him or herself, even if we might not agree with those decisions.  As such, the legal system imposes numerous safeguards to make certain the appointment of a guardian is the option of last resort to protect a person.

For a child, the consent of the parents may be necessary.  Before a guardian is appointed for a child the court will require a home study to make certain the guardian can care for the child.  For an adult, the court will require evidence the person lacks the mental or physical capacity to make decisions for him or herself.  An adult guardianship will almost always require some form of medical testimony to establish the guardianship is necessary.  The person is also given numerous rights to contest the guardianship.  Before someone can be appointed guardian they may need to pass a background check.

What is the difference between guardianship and conservatorship?

The court can appoint both a guardian and a conservator.  Put simply, the guardian makes decisions for the person, and the conservator makes decisions about the money.  A guardian may decide where the person lives or make medical decisions for the person.  The conservator would manage the money of the person to pay for the cost of a home or for the medical treatment, for example.  The evidence necessary to establish a guardianship and a conservatorship are similar. Before being appointed as a conservator, however, a person would need to provide a credit score.  A bond is often required for a conservatorship.  A conservatorship also has increased reporting requirements, and the conservator may need to obtain approval from the court before using the person’s money for certain things.  If someone either does not have any assets or has a representative payee for monthly benefits, they may choose to forgo a conservatorship.

What are the powers of a guardian and a conservator?

Once appointed, a guardian and a conservator have the powers set forth in their letters of appointment.  A guardian of a child can decide where the child goes to school, where the child lives, in make medical decisions for the child.  A guardian for an adult can decide where a person lives, including whether that person needs to be in some form of group home or skilled nursing facility. The guardian can also make decisions regarding the person’s medical treatment, including which doctors to see and whether to undergo surgery.  The guardian can hire and fire service providers.  A conservator can use the person’s money to pay for their expenses.  The conservator can decide to sell assets of the person, provided funds are used for the benefit of the person and the court provides approval.  Once someone has a guardian or a conservator appointed for them, that person loses the legal ability to sign contracts or make other legal decisions.

Questions about a guardianship or conservatorship? 

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When is guardianship necessary?

An adult guardianship is granted when the person is “incapacitated.”  A guardianship will be entered to protect the person from harm when he or she cannot make decisions for themselves.  A conservatorship can be entered to protect the person from financial exploitation.

Guardianship may be necessary when a person is suffering from dementia.  Guardianship may also be necessary when a special needs child turns 18.  When the child turns 18 the parents may lose the legal authority to make decisions for the child.

Does your loved one need a guardianship?  There is no “one size fits all” answer.  As you are making this decision, there are certain questions you can ask:

Medical decisions and care

  • Can the person make and communicate decisions regarding medical treatment, including understanding the consequences of not accepting treatment?

  • Does the person understand health consequences associated with high risk behaviors (substance abuse, overeating, high-risk sexual activities, etc.)?

  • Can the person alert others and seek medical help for serious health problems?

  • Is the person able to decide and direct what kinds of support they need or want and select who provides those supports?

Safety living at home

  • Is the person able to be on their own without risk of serious harm or injury to themselves?

  • Does the person understand what is involved with managing a home that is safe (home maintenance, sanitary conditions, secure, etc.)?

  • Is the person able to access community resources critical to functioning successfully and safely in community settings (post office, transportation, bank, grocery store, emergency services, church, etc.)?

Risk of exploitation

  • Is the person able to recognize when someone is taking advantage of them, hurting them, or abusing them (physical, sexual, emotional) and protect themselves?

  • Does the person know who to contact if they are in danger, being exploited,
    or being treated unfairly (police, DSS, Arc, Lawyer)?

Questions about a guardianship or conservatorship? 

Schedule a FREE Consultation.

Guardianship lawyer Tim McCurdy

Guardianship requires a lawyer who will listen to you.  You need a partner to help guide you through the complex guardianship process.  Tim McCurdy will take the time to learn about your unique situation to help look for a solution.

LASHLY & BAER, P.C., is a mid-size Missouri law firm with deep roots in both Missouri and Illinois. As a full-service firm, we have developed a very diverse and extremely loyal base of local, regional and national clients.

Our lawyers work with clients ranging from individuals, large and small businesses, government agencies, hospitals and more.  Our practice areas include estate planning, elder law, probate, business and corporate law, education, government and public agencies, health care, labor and employment, real estate, professional liability, and transportation.

Our attorneys share a commitment to and a passion for our community, and we take pride in helping individuals, businesses and government entities across Missouri and Illinois.