Guardianship

What it means

Guardianship is a court proceeding. It requires evidence of incapacity, notice to the person, and in most places a hearing at which they may be represented.

In most states a guardian handles the person — where they live, what care they receive — while a conservator handles the money. Some states use one word for both, and some use the words the other way round.

It is ongoing. A guardian usually reports to the court periodically for as long as the appointment lasts.

Why it matters

It removes rights from an adult, which is why courts are careful and why it takes time and money. It is the outcome that planning documents exist to avoid.

It is also sometimes the right answer, particularly where someone is being exploited and no valid power of attorney exists.

When you are likely to meet it

• When a parent can no longer make decisions and nothing was signed.
• When a bank or care home says only a guardian can act.
• When family members disagree about who should be in charge.

Guardianship and conservatorship

Two roles, split by what they control — and two words that a few states use the other way round, which is the part that catches families out.

How this varies by state

Whether a state calls this guardianship or conservatorship, what evidence it requires, and what a guardian may do without further permission are all set by state law.

Related terms

• Adult Protective ServicesThe state agency that investigates suspected abuse, neglect or financial exploitation of vulnerable adults.
• CapacityWhether somebody is able to understand a decision and its consequences well enough to make it. It is decided decision by decision, not once and for all.
• Catalog of electronic communicationsThe list of who was written to and when — as distinct from what the messages said.
• ConservatorshipA court appointing somebody to manage the money and property of an adult who cannot manage it themselves.
• Content of an electronic communicationWhat the messages actually said — the half of a digital account that is hardest to reach, and impossible to arrange for after capacity is gone.
• Durable power of attorneyA power of attorney that keeps working after the person who signed it loses the ability to make decisions — which is usually the whole point of signing one.
• Fiduciary dutyThe obligation to act for somebody else's benefit rather than your own — and to be able to show you did.
• Guardian ad litemSomebody the court appoints to speak for an interest that cannot speak for itself in one case.
• Guardian nominationNaming, in a will, who should raise your children — or care for a dependent adult — if you cannot.
• Incapacitated principalThe person who signed a power of attorney, after they have lost capacity — and the statutes are explicit that no court has to have said so.
• Preneed guardianSomebody named in advance, in a signed declaration, to be appointed guardian if a person or their children later need one.
• Probate courtThe court that supervises estates. In many states it is a division of a general trial court and goes by another name.
• Protected personThe person a conservatorship or guardianship is about — and a term whose meaning is not the same in every state.
• Rebuttable presumptionA starting position a court must take unless somebody shows a reason not to.
• Representative payeeSomebody appointed by Social Security to receive and manage benefits for a person who cannot manage them.
• Standby guardianA guardian named in advance who steps in on a trigger, without a fresh contest over who it should be.
• Undue influencePressure that overcomes somebody's own wishes, so that a will, gift or transfer reflects the influencer's intentions rather than theirs.
• Successor agentThe person a power of attorney names to act if the first-named agent cannot. Without one, the document can be left with nobody able to use it.

Sahvelo guidance that uses this

• Guardianship
• Financial exploitation