Planning for the care of your loved ones is probably the most important thing you can do. However, it's something that many of us avoid. The reasons are varied – we are busy, we avoid making important decisions or we simply postpone it. The crucial thing to know is that you are not alone – everyone has someone that cares for them, someone they are responsible for, or someone who waits for them at home.
No matter who you are making the decisions for, either for your children or older parents, you may feel that you are about to make the biggest decisions of your life. You will have to know what guardianship is, how it should be used, and how it can help you feel more confident in your decisions. Here's what you need to know about guardianship and how the guardianship power of attorney can help you:
What is guardianship?
Guardianship is a fairly simple legal process that helps establish who will step in if you are unable to take care of your children or other people, such as your older parents or grandparents. The person subject to guardianship can be any person, either a child or an adult who cannot take care of themselves. The legal guardian will assume all the responsibilities of care. For instance, the legal guardian must provide food, education, housing, and medical aid. Although the legal term “guardian” can vary from state to state (such as tutor or conservator), the rules are virtually the same. Talk to your trust and estate planning attorney if you want to learn more about guardianship in your state.
There are two major types of guardians, and their roles differ accordingly:
- the guardian of the estate – this legal guardian is responsible for managing finances; the specific activity of an estate guardian is defined in the estate plan
- the guardian of the person – this legal guardian is responsible for the care and custody of a person
What is the purpose of a legal guardian?
Legal guardians have multiple responsibilities. Typically, however, they fill in the role of a caretaker for the person or estate that is under their guardianship. They will only begin their activity in the event you can no longer do it yourself, according to the provisions mentioned in the guardianship power of attorney document. Guardians have a fiduciary duty to act on behalf of those they are put in charge of, so they have to act in their best interest.
The most important responsibility of a guardian is to make sure every-day needs are met. They must be ready to make decisions regarding legal matters, financial issues, and healthcare. The most important benefit of naming a legal guardian is peace of mind – you know that your loved ones will be properly taken care of in the event something bad happens to you.
The types of guardians
There are many types of guardians and it's important to understand the differences. Although most clients immediately think about guardianship for minor children, legal guardians can help in other ways. Usually, guardianship can be full, limited, or joint.
- full guardianship – this type of guardianship involves complete decision-making ability and responsibility for another person; this includes personal, legal and financial affairs
- limited guardianship – this means responsibility for specific needs, such as healthcare and property management
- joint guardianship – in this case there are multiple guardians appointed
Types of guardianship by roles:
- guardianship of minors – this guardian is appointed to specifically take care of a minor child's needs; they are also appointed to manage the financial needs of a minor when he or she grows
- guardianship of elderly – they are designed for elderly persons who cannot take care of themselves; this type of guardianship is often known as elderly conservatorship
- guardianship for adults – this type of guardianship is used for adults who are considered incapable of taking care of themselves and need assistance when making decisions; it often occurs when the adult is severely disabled
- pet guardianship – it establishes the rights and ownership of your pets after you pass; the provisions included in your will or living trust will mention who will take care of the pet and who will provide the financial resources needed
- medical guardianship – it can become active when you are incapacitated following an accident or medical intervention; usually, medical decision-making guardians are appointed by a court
- financial guardianship – these guardians will manage your assets and finances after you pass, according to the specifications in your estate plan; they act in the conservatee's best interest and will make all the financial decisions concerning your assets; financial guardians are not allowed to mix their personal finances with your finances
Talk to your trust and estate planning attorney to learn more about the various roles of a legal guardian.
Custody vs. guardianship
Both these legal terms are often used when talking about a child's legal rights. However, there are several differences. For instance, legal guardianship is appointed to someone who is not the child's biological parent. On the other hand, custody is awarded to biological parents and is described as a percentage of care. Guardianship is appointed by the court, giving guardian custody when the parent is not able to maintain their rights. In both situations, custody, and guardianship, the child's best interests govern the decisions.
Choosing a legal guardian
Choosing the best guardian to care for your loved ones is a difficult process. You should always talk to your trust and estate planning attorney before you make the final decision. The attorney will be able to offer you guidance and help you draft the guardianship power of attorney document.
Ideally, you should choose someone you know closely and who reflects your values. Find someone who is able to offer stability, companionship, guidance, and love. The person you choose must be long-term support for your loved ones. Keep in mind that it's not compulsory to choose a family member as a legal guardian. Friends and extended family members can also be ideal guardians, particularly if they are close to you and your loved ones.
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