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Estate Law Basics: What is a Guardian?
Estate Law Basics: What is a Guardian?

Most people understand the term “guardian” in terms of a person who takes care of a minor child.  That is one valid definition, but a guardian in legal terms is broader.  The court can appoint a guardian to care for a person’s daily needs and welfare, and the protected person can be an adult or a child.  A guardian can be a relative, a professional, or another person who has an interest in seeing a person at risk receive necessary assistance.

The first thing to know is that the Court will not appoint a guardian unless one is truly necessary.  The Court first looks at the least restrictive option.  If you’re dealing with a minor, a guardianship may be the only option, but if the person in need is an adult, the Court will look at other options, such as powers of attorney, instead.  The guardianship itself may come with terms that limit the guardian’s authority to act in areas that can be handled by the protected person.

The Court establishes several kinds of guardians: permanent guardians, temporary guardians, and emergency guardians.  An emergency guardianship is put in place when there is an emergency regarding someone’s health or safety and is limited to a specific time period.  A temporary guardianship can be put in place for 60 days and is generally used during the period before a permanent guardianship is put in place.  A permanent guardianship is, as the name suggests, a long-term appointment.  For a child, a permanent guardianship is designed to last until the child reaches 18 years of age.  The guardianship can be modified or terminated before then based on a change of circumstances.  When an adult is the protected person, a permanent guardianship lasts until the protected person’s death or a further court order modifying the guardianship or removing it should the protected person regain the ability to care for themself.

When the Court receives a petition for a guardianship, it appoints a Court Visitor.  This person is appointed to learn about the situation leading to the request for guardianship, and to report to the Court any conclusions about whether a guardianship is a good idea and necessary.  The Court Visitor meets with the protected person and may visit their home.  The visitor can contact other people with information about the circumstances, and then uses this information to share with the Court what they’ve learned.  The Court Visitor may recommend that a guardianship or a limited guardianship be approved or tell the Court that the protected person is not in need of care.

Once a guardian is appointed by the Court, the guardian’s responsibilities begin.  Prospective guardians can learn about those responsibilities through a video issued by the Court, or the Guardian’s User’s Manual.  This document explains the fiduciary requirements of being a guardian, and what the relationship is between the guardian and the Court.  The primary responsibility to the Court is to file an annual report.  This document keeps the Court updated as to the protected person’s condition.  It includes questions about medical and mental health, where the protected person resides, and whether the guardianship should continue.  If the protected person is a child, the report also includes educational progress and extracurricular activities.  The Court uses the report to determine whether there needs to be any changes to the guardianship, and to confirm that the protected person is having their needs met.

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