Guardianship: What It Is and How It Works
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What is guardianship?
Guardianship gives someone court-appointed legal authority to make decisions for a person who cannot act independently. Guardians typically care for minor children, though guardianship (sometimes called conservatorship) may apply to adults facing disability, incapacity or similar circumstances.
Guardianship laws vary by state. If you have minor children or other dependents, consider naming a guardian for them in your will as part of your estate plan.
» Estate planning? Here's how to get started
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Pros and cons of guardianship
Pros | Cons |
|---|---|
All-inclusive. Guardianship can give a person the right to make financial, medical and personal decisions for someone else. | Restrictive. Guardianship can remove significant rights from a person and may be difficult to overturn. |
Singular. Having a designated guardian can simplify decisions and reduce conflict. | Indefinite length. Guardianship lasts as long as the person is in need, which could be until a child reaches adulthood — or it could last decades or a lifetime if a person is incapacitated. |
Conservatorship vs. guardianship
The main difference between conservatorship and guardianship is age. Guardianship typically applies to minor children, but conservatorship generally applies to adults (though definitions vary among states).
Conservatorship primarily concerns finances, while guardianship concerns medical and personal care. Guardianship can apply to a person — such as a minor child or an incapacitated adult — or to someone's assets (but it is not the same as being an executor of a person's will).
What rights does guardianship affect?
A guardian is responsible for making decisions in the best interest of another person and their assets. The decisions a guardian can make vary by situation and state, but may include:
End-of-life decisions.
Consent to medical treatment.
Release of confidential information.
Consent to educational and counseling services.
Determination of where to reside.
How to manage property.
Whether and when to file lawsuits.
Guardianship of a child
If you have minor children, you may want to designate a guardian for them in your will. The guardian you name is someone you'd like to become legally responsible for your children if you die or become incapacitated before they turn 18.
If both parents die without naming a guardian, a state court may have to appoint one.
If you die without a will, called dying intestate, a state court may have to decide guardianship of your children. In many states, guardianship is automatically assigned to the next of kin, such as grandparents, aunts, uncles or adult children.
In some states, such as North Carolina, anyone can petition the court to appoint them as a guardian .
In Georgia, if the child is over a certain age (usually 14), they may be able to petition to choose their own guardian .
Guardianship of an adult
Adults with certain health conditions may want to name a guardian for themselves in case they lose the ability to make their own decisions. However, legal guardianship removes many rights, so consider other options, such as a health care proxy.
If you become incapacitated, there may be a court hearing to confirm your chosen guardian. Some states use the term "conservatorship" to describe guardianship for an adult.
Guardianship of an estate
An estate or financial guardian only manages a person's assets. One might be necessary if a minor inherits assets that need supervision until the child reaches adulthood.
An estate guardian can be the same person as a personal guardian, or the two can be different people. This role differs from a power of attorney, which you can choose, while a guardian must be court-appointed.
» Another option: How to set up a trust and name a trustee
Alternatives to guardianship
Guardianship can permanently remove a person's rights, so typically, it is a last resort. These alternatives can give someone the power to make decisions for a minor or incapacitated person without assuming complete legal guardianship.
Health care: advance directives, living wills or durable power of attorney.
Financial: a durable power of attorney for adults or trusts for minors and adults.
Tax implications of guardianship
Being a legal guardian can affect your taxes.
Legal guardians may need to file IRS Form 56 to notify the agency of the guardianship.
Guardians usually can claim the people they're caring for as dependents, which means they may be eligible for certain tax breaks, such as the child tax credit. However, the child must have provided no more than half of their own financial support and must have lived with you for more than half of the year. For this credit, the dependent can be up to 24 years old if they're a full-time student .
Guardians who don't qualify for the child tax credit may still be able to claim a $500 tax credit for a qualifying adult dependent. Typically, these adults rely financially on you or are permanently disabled .
Guardianship by state
Guardianship and conservatorship have different definitions and requirements depending on the state. You can find state-specific information here. These are a few examples of differences:
Guardianship in Florida
Florida allows guardianship options ranging from informal custody to temporary custody (through family court), to permanent guardianship (through probate court).
Guardianship in Texas
Texas allows petitions for custody in some counties, which can be a simpler and less expensive process than guardianship .
Guardianship in California
California allows “probate guardianship” of either the person or the estate. In this state, guardianship is only for minors; conservatorship is for adults. .
Guardianship in New York
New York separates the court process depending on the assets involved. If the child will inherit property, guardians must go through surrogate’s court. If not, they go through family court.
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