Guardianship is a court-supervised legal process designed to protect an individual who is unable to independently manage certain personal, medical, or financial decisions. Guardianship proceedings may involve an elderly individual experiencing diminished capacity, an adult with developmental or cognitive disabilities, a person who has suffered a serious injury or illness, or a minor who requires legal management of property or other matters.
Because guardianship can significantly affect an individual’s legal rights and independence, courts carefully supervise both the appointment of a guardian and the guardian’s ongoing actions.
How a Guardianship Begins
An adult guardianship generally begins when someone petitions the court alleging that an individual is unable to make certain decisions independently. Depending upon the jurisdiction and circumstances, the court may appoint medical professionals, attorneys, evaluators, or committees to investigate the individual’s abilities and needs.
The court may then determine whether the individual is incapacitated and, if so, which rights require assistance. Courts generally seek to impose the least restrictive form of guardianship appropriate under the circumstances.
A guardian may be appointed to make decisions concerning the person, the property, or both.
Guardian of the Person and Guardian of the Property
A guardian of the person generally has responsibility for personal and health-related matters. These responsibilities may include decisions regarding residence, medical treatment, caregivers, education, social services, and other aspects of daily life.
A guardian of the property generally manages financial affairs. Responsibilities may include collecting income, managing bank and investment accounts, paying appropriate expenses, maintaining property, applying for public benefits, addressing taxes, and protecting the individual’s assets.
In some cases, one person serves in both capacities. In others, different individuals or professional guardians may be appointed to manage different aspects of the protected person’s affairs.
Ongoing Court Reporting
Appointment is only the beginning of the guardianship process. Guardians generally remain subject to ongoing court supervision and reporting requirements.
A guardian of the property may be required to prepare an initial inventory identifying the protected person’s assets. Depending upon applicable law, the guardian may also be required to establish restricted depository accounts, obtain court approval before transferring certain assets, maintain detailed financial records, and file periodic or annual accountings.
A guardian of the person may be required to prepare an initial or annual guardianship plan describing the protected person’s living arrangements, medical condition, treatment, activities, services, and anticipated needs.
These reporting requirements allow the court to monitor whether the guardianship continues to operate in the protected individual’s best interests.
Handling Guardianship Assets
Guardians should understand that guardianship assets are not their personal property. Funds must be used only for authorized purposes relating to the protected individual. Mixing guardianship funds with personal funds, making undocumented expenditures, or failing to maintain appropriate records can create serious legal problems.
Major financial decisions may also require court approval. Depending upon the circumstances, a guardian may need authorization to sell real estate, settle claims, make significant gifts, engage in certain estate planning transactions, change investment strategies, or expend substantial funds.
Public benefits frequently become part of guardianship administration. A guardian may need to coordinate Social Security benefits, Medicaid, Medicare, pension benefits, insurance, veterans’ benefits, or other assistance programs. Careful planning may be necessary to avoid jeopardizing eligibility for needs-based benefits.
Estate planning may also become relevant. If the protected individual already has a trust, power of attorney, health care directive, or other planning documents, those documents should be carefully reviewed. Existing fiduciaries may retain authority over certain matters even after a guardianship is established.
Contested Proceedings and Removal
Guardianship proceedings can sometimes be contested. Family members may disagree about whether guardianship is necessary, who should serve as guardian, where the individual should reside, how assets should be managed, or what medical care is appropriate.
Courts may also be asked to remove or replace a guardian who fails to fulfill fiduciary responsibilities or whose continued service is no longer in the protected person’s best interests.
Guardianship of Minors
Minor guardianships present somewhat different issues. A guardian may be required when a minor receives a significant inheritance, lawsuit settlement, insurance payment, or other assets. Because minors generally cannot legally control substantial property, a guardian may be appointed to manage the funds until the child reaches adulthood or until another legally authorized arrangement is established.
How We Support Guardians
Our guardianship practice includes assistance with both the establishment and ongoing administration of guardianships. We help clients understand the court process, prepare required petitions and filings, respond to court orders, establish appropriate financial accounts, prepare inventories and annual reports, seek authorization for necessary transactions, and address issues that arise during the guardianship.
We also advise guardians regarding their fiduciary duties and recordkeeping responsibilities. Proper documentation is critical because guardians may later be required to demonstrate exactly how funds were handled and why particular decisions were made.
Alternatives to Guardianship
Whenever possible, alternatives to guardianship should also be considered. Powers of attorney, health care directives, trusts, representative payees, supported decision-making arrangements, and other planning techniques may sometimes accomplish the necessary objective without a full guardianship.
When guardianship is necessary, however, proper legal administration provides a structured system for protecting individuals who are unable to fully protect themselves.
The objective of guardianship should always remain centered on the protected person: preserving dignity, encouraging independence where possible, protecting assets, providing appropriate care, and ensuring that significant decisions are made responsibly and with proper legal oversight.
Admitted in Florida, Massachusetts and New York
I am admitted to practice law in Florida, Massachusetts, and New York, with my practice primarily focused on clients and matters involving Florida and Massachusetts. This multi-state perspective is particularly valuable for individuals and families who divide their time between states, own property in more than one jurisdiction, or need their estate, trust, probate, guardianship, or business planning coordinated across state lines. Although I am also admitted in New York, my principal practice and client services are centered in Florida and Massachusetts.