Although the definition of guardianship is consistent across populations, the tasks and duties of a guardian may be very different depending on the situation. Each individual—whether they are a minor, person with a disability, or a senior—has needs, wants, preferences and abilities. And the responsibility of a guardian is immense. Guardianship is a serious matter, and the circumstances that contribute to the need for a guardian are varied.
Jump ahead to these sections:
- Types of Guardians for Minors
- Types of Guardians for Aging Adults
- Types of Guardians for Adults With Developmental Disabilities
Regardless of the age or disability of the protected person, they have the right to health, happiness, and choice to the fullest extent possible. Not every guardianship requires the involvement of an attorney, but we recommend consulting one in all of these cases to ensure you take appropriate and legal action.
Types of Guardians for Minors
The guardianship of a minor is a particular case because parents are usually the legal guardians of minors until they reach 18. However, some situations call for either the parent(s) to be removed as guardian, the parent abandons their child, or if the parent dies, leaving a minor with no legal adult to care for them. The other complicating and distressing situation for a minor is during divorce, when custody becomes an issue.
1. Temporary guardianship
A temporary guardianship is a process whereby you can ask the court to allow someone else to care for your child. Each state has a different method of petitioning the court to assign temporary guardianship. In most states, you can fill out a form and have it notarized, but the application process might be more complicated in other states.
The essential characteristic of this type of guardianship is that it is for a defined time period, at which point the guardianship would terminate or be extended. Each state statute determines the length of temporary guardianship.
There are several circumstances under which a temporary guardianship might be necessary. For example, you may be out of town for an extended period of time or recuperating from an illness or surgery. There could be other extenuating circumstances where you feel it is in your child’s best interest to have a temporary guardian.
You may ask why a formal temporary guardianship would be necessary in these cases. The reason is that legal and health decisions on behalf of a child require the authority to do so. Someone might need to make decisions on education, finances, or other issues where only a temporary guardianship would allow them to manage the minor’s care easily.
2. Guardian ad litem
A guardian ad litem is an impartial person’s appointment to represent the best interests and advocate for a minor. The appointment of a guardian ad litem is considered temporary until such time the court can appoint a permanent guardian. Situations that call for a guardian ad litem include custody conflicts, child endangerment (child abuse or drug use) A guardian ad litem is a trained professional and often an attorney.
The role of the guardian ad litem is often to represent the child’s interest in a custody court proceeding. The guardian ad litem may be asked to interview friends and family, review medical, therapy, or school records. They will also need to know the child’s preferences and background. In addition, the guardian ad litem can examine the relationship between the child and parents. Their testimony is a crucial part of a custody hearing.
3. Guardian of the estate (or conservatorship)
The court may appoint a guardian of the estate (in some states referred to as conservator) for the minor. In some cases, a minor may have significant assets in the form of property or money.
A guardian of the estate is appointed to ensure that the estate is protected and financial decisions are made in the child’s best interest. In other cases, a professional company is sometimes appointed if no individual is available that can handle complex financial decisions.
4. Emergency guardianship
Emergency and temporary guardianship are sometimes used interchangeably. However, the term emergency guardianship is more often used when the court system appoints a guardian in a case where a minor is without care due to unforeseen circumstances.
An emergency guardianship can occur quickly due to the need to provide a safe environment for a child whose parents cannot perform their custodial duties. An attorney or family member can petition the court for an emergency hearing to consider evidence in an emergency guardianship.
Types of Guardians for Aging Adults
Until they reach the legal age of adulthood, a minor must have a legal guardian (usually their parent) to make decisions on their behalf. Anyone over the age of 18 is presumed to have decision-making capacity unless they are deemed by the court as being incapacitated.
Examples of situations where an adult cannot make safe decisions are dementia, neurological disorders, mental illness, alcohol or drug abuse, neglect, exploitation, or elder abuse.
Getting guardianship of an aging adult is a legal process that requires proof of incapacity to present to the court. If you have completed an advance directive, you may have had the opportunity to choose a guardian in the event you can no longer advocate for yourself.
In other situations, the court will appoint a willing family member or a professional company to act as guardian. Guardianship of an adult should always be a last resort when all other options have failed.
5. Guardianship of the person
Guardianship of the person is the authority granted to someone to make healthcare and housing decisions on behalf of the protected person.
This includes consent for medical procedures, where and how someone will live, end-of-life decisions, and ensuring quality of life and court reporting. A guardian has to grant permission for the protected person to marry or sign any legal forms in some states.
6. Guardianship of the estate
Guardianship of the estate refers to managing someone’s assets, property, and income.
These responsibilities include protecting property and assets from loss related to family members or fraudulent behavior, or exploitation by others. Also included in the duties of a guardian of the estate is to ensure that the protected person has the resources they need to live a safe and enjoyable life.
7. Limited guardianship vs. full guardianship
For an adult who has had decision-making control their entire lives, the appointment of someone else to assume that responsibility is an enormous undermining of their rights and liberties. To honor and uphold the aspects of someone’s life that they can manage, courts will sometimes grant a limited guardianship versus a full guardianship.
An example of a limited guardianship would be where a person is able to make decisions about their healthcare and housing but can’t manage their estate. In such a case, a judge may grant limited guardianship for the sole purpose of estate management. The definition of full guardianship is the authority granted to someone to manage all aspects of a person’s life, both healthcare and finances.
8. Emergency guardianship
In certain situations, the court may grant an emergency guardianship for an older adult. The purpose of an emergency guardianship is to provide someone with immediate protection. An emergency guardianship is temporary until a permanent guardian is appointed. A judge considers the evidence when appointing an emergency guardian.
The situation must present an immediate and clear danger to the proposed protected person. Examples include elder abuse, neglect, abandonment, or exploitation of the estate. Families, adult protective services, hospitals, nursing homes, attorneys, and others can file for emergency guardianship.
Types of Guardians for Adults With Developmental Disabilities
After the age of 18, a parent or other individual can petition to become a guardian for a person with developmental disabilities. The standard for this type of appointment is different from the other cases we have discussed. Evidence from a doctor or mental health professional is presented to the court to confirm the diagnosis of a permanent intellectual or developmental disability.
9. Full guardianship
As with full guardianship for an older adult, this type of guardian gives the parent or other individual complete control over all aspects of a person’s life. In many of these cases, full guardianship is a continuation of the care and decision-making parents have been making all along.
10. Limited guardianship
Just because someone has developmental disabilities doesn’t mean they are unable to manage some aspects of their life. Perhaps the individual can make health care decisions but is unable to handle the complexities of money management. In those cases, the judge may designate that the guardian can only make financial decisions on behalf of the protected person.
There are other mechanisms and systems to help someone with a developmental disability that don’t involve guardianship. For example, less restrictive options could be representative payees, healthcare proxies, case managers, and others who can assist someone in making safe and informed decisions.
11. Emergency guardianship
An emergency guardianship for a person with developmental disabilities can occur when safety is an issue. An emergency guardianship could take place before an initial guardian is designated or after one has been appointed. Allegations of abuse or neglect may necessitate the appointment of a temporary or professional guardian to protect the individual from harm.
12. Temporary guardianship
Temporary guardianship could be necessary during an emergency proceeding or if someone objects to parents petitioning for guardianship. Other family members may step in and complicate a court process by asserting that the parents are not appropriate guardians. The judge has the discretion to appoint a temporary guardian until a permanent guardian is found.
If no one can assume the responsibility of guardianship and has the assets to support a professional guardian, that could be an option. Otherwise, the person with developmental disabilities could become a ward of the state.
Types of Guardians
The serious nature of guardianship demands careful and committed responsibility to the person for whom you are responsible. Whether you are the guardian for a minor, an elder, or a person with developmental disabilities, you are their advocate and champion. The tasks may be challenging at times, but the rewards of helping another person can be great.
Sources:
- “What is Guardianship?” National Guardianship Association, 2021. guardianship.org
- “Autonomy, Decision-Making, and Guardianship.” American Association on Intellectual and Developmental Disabilities, 2021. aaidd.org