Guardianship: What It Is and How It Works
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Guardianship, also called conservatorship in some states, is a court-appointed designation giving another person the power to make decisions for someone who is unable to act independently. It is commonly used to care for minor children, though guardianship sometimes applies to adults facing disability, incapacity or similar circumstances.
Guardianship is an important step in estate planning because it can help protect the vulnerable people in your life in the event that you die or become incapacitated.
» Estate planning? Here's how to get started
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 usually primarily concerns finances, while guardianship usually concerns medical and personal care.
How does guardianship work?
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).
Guardianship of a child
If you have minor children, you may want to designate a guardian for them if you die. You typically make this designation in your will. The guardian you name is someone you'd like to become legally responsible for the children if you die 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 next of kin, such as grandparents, aunts and uncles or adult children.
In some states, such as North Carolina, anyone can ask 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 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 you may want to consider other options first.
You can name a guardian by drafting a Declaration of Guardian document. If you become incapacitated, there may be a court hearing to confirm the guardian you've chosen.
Guardianship of an estate
An estate or financial guardian only manages a person's assets. This role usually comes into play when a minor inherits property or other assets that must be supervised until the child reaches adulthood.
An estate guardian can be the same person as a personal guardian, or the two can be different people.
An estate or financial guardian isn’t the same as a power of attorney.
» Another option: How to set up a trust and name a trustee
What rights does guardianship affect?
A guardian's primary responsibility is to make decisions that are in the best interests of another person and that person's assets. The decisions a guardian can make on behalf of another person vary by situation and state but may include any of the following:
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.
Alternatives to guardianship
Guardianship can permanently remove a person's rights, so typically it is a last resort. There are other ways to give people limited powers in certain circumstances.
Health care alternatives include advance directives, living wills or durable powers of attorney.
Financial guardianship alternatives include a power of attorney for adults or trusts for minors and adults.
These alternatives allow someone to make decisions in the best interest of a minor or incapacitated person without assuming complete legal guardianship.
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.
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 that 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 are adults who rely financially on you or are permanently disabled .
