Guardianship of Incapacitated Adults
and Minor Children
Guardianship of an Incapacitated Adult
Guardianship generally should be considered a solution of last resort for handling the personal or financial affairs of an incapacitated adult. Only a court may appoint a legal guardian for an incapacitated adult, so there are legal fees and court expenses involved in the appointment of a guardian. Additionally, there are ongoing reporting and accounting requirements involved in the administration of the guardianship each year, so a guardianship proceeding can be expensive and time-consuming for the guardian.
In many cases, appropriate planning in the form of properly drafted and executed powers of attorney can prevent the need for the appointment of a guardian for an adult. This is the case particularly when incapacity arises later in an individual’s life, after he or she has had the opportunity to plan in advance of the incapacity. In other cases, the individual has been disabled and incapacitated from a young age and never had the ability to plan or execute powers of attorney.
Our firm assists with guardianship applications and helps individual family members navigate the court process for the appointment of a guardian, when necessary. We also provide ongoing assistance to the guardian to ensure that the guardian fulfills all of his or her legal duties, including the annual requirement to report on the personal well-being of the incapacitated individual or to provide an annual accounting of all matters related to the incapacitated individual’s estate. The guardianship process can be a challenge, but when there are no alternatives to the appointment of a guardian, we can help. It is extremely helpful, but not absolutely required, that you complete our guardianship questionnaire before your appointment to discuss your needs.
Guardianship of a Minor Child
Parents are the natural guardians of their children, and, of course, can generally take actions on behalf of their children without the necessity of any court involvement or any official appointment by a court as guardian. The appointment of a guardian for a minor child by a court, therefore, is something that generally becomes necessary only as the result of a tragic event—the death or incapacity of both parents, the removal of a child from a situation of neglect or abuse, or an injury to the child caused by negligence or intentional misconduct. When these tragic events occur, our firm can assist with the process for having a guardian appointed for the minor child, and we assist with the ongoing reporting and accounting requirements that a guardian must fulfill.
In cases involving the death or incapacity of one or both parents, good estate planning in advance can often eliminate or minimize the need for the appointment of a guardian to handle financial matters for the child. Parents with minor children should strongly consider, as part of their estate plan, having both (1) a declaration of guardian for their minor children, in the event of their incapacity or death, and (2) a trust or contingent trust that would hold, manage, and administer any and all property that might pass to their child from the parents' estate. A significant part of estate planning is planning to minimize the need for guardianship.