Guardianship FAQ

  • What is a guardianship?

  • What does the guardian have to do?

  • What is limited guardianship?

  • What is the difference between a conservator and a guardian?

  • My adult son is mentally ill and refuses to seek medical treatment and live in a safe place. My doctor suggested that I become his guardian so that I can get him the help he needs. Is that a good idea?

  • I'd like to be my aunt's guardian, but I can't afford it. What are some other options?

  • What happens if someone needs a guardian but has little money and there's no family member or friend who can do it?

  • How long does it take a court to grant guardianship?

  • How do I begin the process to be appointed a guardian?

  • My grandmother's guardian isn't taking very good care of her and no longer lets me visit. What can I do?

    Q: What is guardianship?

    A: A court appoints a competent adult, called a guardian, for a person over 18 who's declared mentally or physically incapacitated - someone who's unable to make decisions regarding his or her health, living arrangements, finances and life in general. Some reasons may include Alzheimer's disease, mental disability or a recent stroke.

    Guardians don't just watch over adults. A court can appoint a legal guardian for anyone under 18 whose parents can no longer take care of them. If parents abuse their children, become too ill or die, a guardian can be appointed. Sometimes parents voluntarily turn over guardianship if they think it's best for their children.

    A guardian doesn't have to be a relative, spouse, friend or lawyer; a guardian can also be an organization or state-run agency. There are also professional guardians, who are paid out of the ward's funds, though the court must approve the arrangement.

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    Q: What does the guardian have to do?

    A: A guardian makes all legal decisions for the incapacitated person, who's legally called a ward. A guardian must pay the bills, manage the person's property, decide where the person lives and make all medical decisions. A guardian can also decide whom the ward associates with and how the ward can spend their money. That's why it's important that the guardian is trustworthy and always considers the ward's best interests.

    "Appointing a guardian should be the last resort," says attorney Edwin Boyer, with the Florida law firm of Boyer Jackson. Ideally, an adult should make arrangements to take care of his or her medical or financial decisions ahead of time by putting together the required legal documents.

    A durable power of attorney for asset management names a person to manage the finances. A durable power of attorney for health care names a person to make medical decisions for someone. A living trust or living will can also do the same. These are considered better alternatives to appointing a guardian because they reflect the person's wishes instead of relying on the court to decide.

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    Q: What is limited guardianship?

    A: If possible, choose limited guardianship because it restricts the power of a guardian, allowing the individual to retain some legal rights and freedoms. A limited guardianship can work if the ward can still make some decisions for himself. For example, a person may be capable of living on his own and can manage his own money, but isn't able to make his own medical decisions due to a mental illness.

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    Q: What's the difference between a conservator and a guardian?

    A: A court appoints a conservator to manage a person's finances only - not to make personal decisions about where the person lives or whom the person associates with. A conservatorship is granted for some of the same reasons as a guardianship. Some people may be able to handle a small amount of money on a daily basis, but can't manage money on a larger scale.

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    Q: My adult son is mentally ill and refuses to seek medical treatment and live in a safe place. My doctor suggested that I become his guardian so that I can get him the help he needs. Is that a good idea?

    A: In some situations it's helpful, says Robert Weber, a Newton, Mass., attorney. But it's important that parents and relatives understand it's no guarantee.

    "I get a couple calls like this every month," he says. "Unfortunately, there's no guardian police. I can help them become legal guardians, but unless the person is committed to a mental hospital, it's not always possible to force them to start taking their medicine or move to a different house - even if you are legally requiring them to."

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    Q: I'd like to be my aunt's guardian, but I can't afford it. What are her other options?

    A: The guardian never has to use his or her own money to take care of the ward. This is one of the most common misconceptions.

    "The guardian is responsible for paying the ward's bills out of the ward's money," Weber says. However, if the ward doesn't have any assets or income, then it becomes an issue. And family members often do end up paying.

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    Q: What happens if someone needs a guardian but has little money and there's no family member or friend who can do it?

    A: In many states, the court will appoint a public guardian, usually a state-funded agency, to care for the person. If the state doesn't have such a department, like Massachusetts, then it's a huge problem.

    There are some charitable organizations that provide these types of services, and professional guardians and attorneys sometimes serve as guardians pro bono. But it remains a problem in many states.

    Boyer says Florida currently offers public guardianship only in certain areas of the state, and at least 60,000 at-risk residents need guardianship services but don't have them. These people may be making poor decisions about what they eat, where they go, how they spend their money, whether they should drive or see a doctor, etc.

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    Q: How long does it take a court to grant guardianship?

    A: It depends on the state, but it's not usually a long, drawn-out process. In many states, permanent guardianship can be granted in a month if all goes well and no one contests it. Many states also have laws that allow temporary and emergency guardians in the event of a medical or financial emergency.

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    Q: How do I begin the process to be appointed a guardian?

    A: Not everyone hires an attorney, but it's usually the safest and smartest thing to do. Guardianship law is complex and it's changing a lot. Courts are now doing more to supervise guardians instead of just giving appointed guardians free rein. And in many states, the guardian can't make all medical decisions for a ward. In some circumstances, the court must decide whether a particular medical treatment, such as shock treatments or medications with serious permanent side effects, is appropriate.

    In most states, such as Florida, the person who wants to become a guardian must file a petition asking the court to determine incapacity and appoint a guardian. Guardianship issues are often determined in family or probate court. Call your county court to find out the procedures in your area.

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    Q: My grandmother's guardian isn't taking very good care of her and no longer lets me visit. What can I do?

    A: If it's impossible to settle the dispute with your aunt, you can go to court to ask the judge to either relinquish your aunt's rights as guardian or order your aunt to allow you more visits with your grandmother. The court will make a decision based on what's in your grandmother's best interest.

    "In my experience, there are usually very good reasons that a guardian limits visits from family members," says Weber, who serves as a court-appointed guardian for a mentally disabled man who lives in a community home. Weber recently restricted visits by the man's mother. "She wasn't happy about it, but I did it because she couldn't control his eating behavior and after multiple warnings and efforts to resolve the situation, I finally had to say enough is enough."

    Elder abuse does happen. Boyer says people who work as professional guardians are unfairly blamed for most of it, but that it happens among family members more than most people want to believe. If you suspect abuse, report it to your county's adult protective services or the police.

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