A Complete Guide to Adult Guardianship

Managing your own money, property and personal affairs is an important part of independence. Adult guardianship may become relevant when a court determines that someone cannot make certain decisions and needs another person to act on their behalf. Because guardianship can restrict important legal rights, courts generally consider the person’s abilities, the help they need and whether a less restrictive option could address those needs. The terminology and specific rules vary by state.

A financial advisor can help families organize assets, income and financial records when planning for possible incapacity, while an attorney can advise on the legal requirements for guardianship and other options.

What Is Guardianship and When Is It Used?

Adult guardianship is a court-created arrangement that gives an appointed person or organization authority over specified decisions for another adult. Depending on state law and the court order, that authority can cover personal matters, finances or both. Different states do not use the same terminology. For example, some jurisdictions use “guardian” primarily for personal decisions and “conservator” for financial matters, while others define those roles differently.

Guardianship can become an option when a person’s ability to handle particular matters has declined enough that outside legal authority becomes necessary. When deciding whether granting guardianship is appropriate, courts can examine the person’s abilities and the potential consequences of leaving those matters unmanaged. Courts will also weigh whether another form of assistance could address the situation without granting a guardian broader powers.

Types of Guardianship

The authority granted in an adult guardianship depends on state law and the court’s order. Common arrangements include:

Guardianship over a person. This can authorize someone to make specified personal decisions. Areas of oversight may involve medical care, living arrangements and other aspects of daily life.
Guardianship over property or finances. Some states may refer to this role as a conservatorship instead. In any case, the appointed person can receive authority over matters such as income, investments, real estate, debts and other property.
Authority over personal and financial matters. A court can give an appointed individual responsibility in both areas when the circumstances and applicable law support it.

Guardianship can also be limited rather than comprehensive. A limited order gives the guardian authority only over the decisions identified by the court, allowing the individual to retain other decision-making rights.

Even if guardianship is comprehensive, the guardian’s authority is not unlimited. The guardian must operate within the court order and applicable state law. Further, they owe fiduciary duty to the person whose affairs they are managing. Court supervision, reporting requirements and rules governing particular financial transactions vary by jurisdiction.

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How to Obtain Legal Guardianship

Image shows a judge using a gavel to signal a final decision made in a guardianship hearing in court. SmartAsset takes a closer look at the process of adult guardianship.

Adult guardianship is established through a state court proceeding, with the exact process varying depending on the jurisdiction. Generally, someone petitions the appropriate court and explains why they are requesting guardianship. The adult who is the subject of the proceeding must receive notice. They have procedural rights that can include legal representation, participation in the hearing and the option to both present evidence and challenge evidence offered in support of guardianship.

Evidence about the person’s ability to handle the decisions at issue may come from professional evaluations, testimony and other records. Depending on the jurisdiction and case, additional people may be assigned to gather information or advocate for the adult during the proceeding. After reviewing the evidence, the judge determines whether to establish guardianship and how much decision-making authority the order should grant.

Because the proceeding can affect control over money, property, health care and other personal matters, families may want legal advice before filing. A financial advisor can separately help identify accounts, income sources, debts and other assets that may need to be considered in a financial plan.

How Long Does Guardianship Last?

Guardianship can continue for years, but its duration depends on whether the legal basis for the arrangement remains. Changes in the adult’s abilities or available assistance can support a request to revise or end the arrangement. Depending on state law, the adult or another interested party may ask the court to return decision-making authority that it had previously transferred.

The court also controls who is appointed as guardian. A family member or friend may serve, but courts can appoint professional or public guardians when appropriate. Professional guardians may charge fees, which will come out of the protected person’s assets. Specifics depend on state rules and the arrangement itself.

Alternatives to Guardianship

Other arrangements may provide the necessary assistance without giving one person authority over a broad range of personal or financial decisions. Which option is available depends on the adult’s circumstances, ability to establish the arrangement and applicable state law.

Possible alternatives include:

Drafting a living will or living trust
Setting up a durable power of attorney or a medical power of attorney
Using supported decision-making, where available
Arranging for another person to handle designated government benefit payments when the administering agency permits it
Considering an advance healthcare directive or a healthcare proxy

Each option grants a different degree of authority. An arrangement involving government benefits, for example, can be confined to receiving and handling those payments rather than extending to the person’s other property. A financial power of attorney can assign particular responsibilities to an agent, while supported decision-making provides assistance without necessarily transferring the individual’s legal authority to make the choice.

Financial Steps to Take Before Guardianship Becomes Necessary

Planning while you can still make your own decisions gives you more control over who may handle your finances later. Here are some proactive steps to consider taking:

Review your financial power of attorney. Confirm that the person you named is still someone you trust. Also make sure that the document reflects your current accounts and circumstances. An estate planning attorney can help determine whether the document meets your state’s requirements.
Create an organized record of your financial life. This can include bank and investment accounts, retirement plans, insurance policies, real estate, debts, recurring bills and important professional contacts. Keep the information secure, but make sure the person who may eventually need to manage your affairs knows how to locate it.
Match the arrangement to the particular financial task that requires help. Limited assistance with an income source, account or other specific responsibility may not require transferring control over the rest of the person’s finances. The appropriate arrangement will depend on the type of property or payment involved and the authority permitted under applicable law.

Families considering guardianship should also identify the potential financial cost. Court filings, attorneys, evaluations and professional guardian fees can create expenses, and ongoing administration may involve additional costs. Since requirements vary considerably by state, obtaining local estimates before beginning a proceeding can help families plan for those expenses.

Bottom Line

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Adult guardianship can transfer specified personal or financial decisions to someone appointed through a court proceeding. The authority the court grants and the obligations that follow depend on the specifics of the court order and state law. Planning ahead with documents that assign financial or medical authority can provide another way to prepare for the possibility that help with future decisions may become necessary down the road.

Tips for Preparing a Long-Term Financial Plan

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