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LEGAL DICTIONARY

Legal Guardian

A legal guardian is a court-appointed individual who is responsible for the care of a child or an incapable adult.

A guardian can be a family member, friend, local official, or anyone else who is able to handle the responsibility for the individual’s health and welfare and personal or estate matters.

The child or adult person for which the court grants guardianship is called the “protected person.” A guardian has the fiduciary responsibility for acting in the protected person’s best interests. The steps for becoming a legal guardian of a protected person vary according to state laws.

When Might a Guardianship Be Needed?

Parents usually have the legal right to make decisions for their children, and adults have the legal responsibility to make decisions for themselves. However, sometimes circumstances prevent this normal decision-making.

For instance, parents often name someone to serve as guardian of their children in the event of the parent’s death or incapacity. A child’s guardian would have the authority to make decisions, such as where the child goes to school and how to manage any inherited assets until the child reaches adulthood.

If an adult is unable to make decisions for themselves due to mental illness, disease, or form of mental or physical incapacity, a guardian may be needed. When an adult needs a guardian, it is often called a conservatorship. However, individual state laws may define these terms a bit differently.

A guardianship or a conservatorship may be appointed when the protected person is:

  • Physically incapacitated and unable to take care of their own basic needs
  • Mentally incapacitated through illness, accident, or old age
  • In a coma or unconscious
  • A minor without a legal guardian

Each case has to be assessed by a family court or a probate court before this duty of care can be legally assigned.

What Are the Types of Guardianship?

There are three overall categories of guardianships.

  1. Guardianship over the person: With this type of guardianship, the guardian is able to make personal and medical decisions for the protected person.
  2. Guardianship over the estate: This guardianship allows the guardian to make financial decisions for the protected person. However, the court usually needs to approve any decisions regarding the assets of the protected person.
  3. Guardianship over the person and estate: This type of guardianship gives the guardian authority to make personal, medical, and financial decisions for the protected person.

A child guardianship lasts until the child turns 18. The child and the guardian can request that the guardianship continue until the child graduates from high school or reaches the age of 19, whichever comes first. This request must be made at least two weeks before the child turns 18.

What Are the Differences Between a Guardian and Power of Attorney?

A legal guardian and a person with power of attorney are similar in that they are legal authorizations to make decisions for another person’s finances, property, or medical care.

The key difference between a guardian and a power of attorney (POA) is who chooses the individual. Someone can give a trusted party their power of attorney, while a protected person may not have any part in the choice of their guardian.

A medical power of attorney gives someone legal authority to make decisions about another person’s medical care. These decisions may include types of treatment and medication, surgery, and end-of-life care.

Meanwhile, a child medical consent is a legal document in which a parent or legal guardian gives another person or persons the authority to make medical decisions that are in the child’s best interests.

Guardians are subject to strict scrutiny by the courts that appointed them. They must maintain financial records that demonstrate that they are managing property, medical care, and finances in the best interests of the protected person.

Helpful Resources:

The Administration for Children and Families - What does it mean to be a legal guardian?

Family Law Self-Help Center - Purpose and Types of a Guardianship

Family Caregiver Alliance - Conservatorship and Guardianship

A legal guardian is a court-appointed individual who is responsible for the care of a child or an incapable adult.

A guardian can be a family member, friend, local official, or anyone else who is able to handle the responsibility for the individual’s health and welfare and personal or estate matters.

The child or adult person for which the court grants guardianship is called the “protected person.” A guardian has the fiduciary responsibility for acting in the protected person’s best interests. The steps for becoming a legal guardian of a protected person vary according to state laws.

When Might a Guardianship Be Needed?

Parents usually have the legal right to make decisions for their children, and adults have the legal responsibility to make decisions for themselves. However, sometimes circumstances prevent this normal decision-making.

For instance, parents often name someone to serve as guardian of their children in the event of the parent’s death or incapacity. A child’s guardian would have the authority to make decisions, such as where the child goes to school and how to manage any inherited assets until the child reaches adulthood.

If an adult is unable to make decisions for themselves due to mental illness, disease, or form of mental or physical incapacity, a guardian may be needed. When an adult needs a guardian, it is often called a conservatorship. However, individual state laws may define these terms a bit differently.

A guardianship or a conservatorship may be appointed when the protected person is:

  • Physically incapacitated and unable to take care of their own basic needs
  • Mentally incapacitated through illness, accident, or old age
  • In a coma or unconscious
  • A minor without a legal guardian

Each case has to be assessed by a family court or a probate court before this duty of care can be legally assigned.

What Are the Types of Guardianship?

There are three overall categories of guardianships.

  1. Guardianship over the person: With this type of guardianship, the guardian is able to make personal and medical decisions for the protected person.
  2. Guardianship over the estate: This guardianship allows the guardian to make financial decisions for the protected person. However, the court usually needs to approve any decisions regarding the assets of the protected person.
  3. Guardianship over the person and estate: This type of guardianship gives the guardian authority to make personal, medical, and financial decisions for the protected person.

A child guardianship lasts until the child turns 18. The child and the guardian can request that the guardianship continue until the child graduates from high school or reaches the age of 19, whichever comes first. This request must be made at least two weeks before the child turns 18.

What Are the Differences Between a Guardian and Power of Attorney?

A legal guardian and a person with power of attorney are similar in that they are legal authorizations to make decisions for another person’s finances, property, or medical care.

The key difference between a guardian and a power of attorney (POA) is who chooses the individual. Someone can give a trusted party their power of attorney, while a protected person may not have any part in the choice of their guardian.

A medical power of attorney gives someone legal authority to make decisions about another person’s medical care. These decisions may include types of treatment and medication, surgery, and end-of-life care.

Meanwhile, a child medical consent is a legal document in which a parent or legal guardian gives another person or persons the authority to make medical decisions that are in the child’s best interests.

Guardians are subject to strict scrutiny by the courts that appointed them. They must maintain financial records that demonstrate that they are managing property, medical care, and finances in the best interests of the protected person.

Helpful Resources:

The Administration for Children and Families - What does it mean to be a legal guardian?

Family Law Self-Help Center - Purpose and Types of a Guardianship

Family Caregiver Alliance - Conservatorship and Guardianship