Guardianships and conservatorships can be a confusing subject—from the terminology used in various states to the types of guardianships available. What's a limited guardianship, and how does it differ from a full guardianship? What is the timeline for a general guardianship versus for a temporary guardianship? Below, we tackle the most common questions that arise.
What is a guardian or conservator?
A guardian is a court-appointed adult who takes care of a person who is unable to take care of himself or herself. The person the guardian takes care of is called a "ward." When a court appoints a guardian to take care of an adult, it is usually because the ward has physical or mental disabilities that limit the person's ability to handle matters. Courts also appoint guardians for children whose parents can no longer care for them.
In some states, a guardianship for adults is known as a "conservatorship," the guardian is known as the "conservator," and the ward is known as the "conservatee." In other states, which term is used might depend on whether the ward is a minor, or whether the guardian has control over financial matters. In this article, we'll stick with the term "guardian."
Often a court-appointed guardian is a relative, spouse, or friend. But a guardian can also be a lawyer, a professional guardian, a private organization, or state-run agency. The court makes a decision based on what is best for the ward.
What does the guardian do?
In a full guardianship, the guardian (or conservator) makes all legal decisions for the ward (or conservatee). A guardian must pay the bills, manage the person's property, decide where the person lives, and make medical decisions. A guardian can also decide whom the ward associates with and how the ward can spend money. Because the guardian's powers are very broad, it's crucial that the guardian is trustworthy and always considers the ward's best interests.
That said, guardians do not have free rein to do whatever they want. The court supervises guardians and reviews their decisions. Also, in many states, the court—not the guardian—will make certain decisions about medical treatment, such as shock treatments or medications with serious permanent side effects.
What is a limited guardianship?
A limited guardianship restricts the power of a guardian more than a full guardianship, allowing the ward to retain some legal rights and freedoms. A limited guardianship can work if the ward can still make some decisions. For example, a person might be capable of living independently and managing money, but unable to make medical decisions. If the ward is still able to make some decisions on their own, you may want to consider a limited guardianship to preserve some of their autonomy.
On the other hand, applying for a limited guardianship can be a more complicated procedure, since you will have to outline when the guardian is in charge, and when the ward is able to manage on their own.
How long does it take a court to grant guardianship?
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. (But family conflict can lead to extremely long timelines.) Typically, you'll have to take several steps such as:
- File for guardianship
- Give notice to certain people (following specific rules on service and proving that you served these people)
- Attend a court hearing.
Many states also have laws that allow temporary or emergency guardians in the event of a medical or financial emergency. Again, the exact timeline will vary by state, and even by local courts. Typically, you'll file for both temporary guardianship and general guardianship at the same time, but the temporary guardianship will be granted sooner, often in a matter of days, and lasts for a short period of time or until a general guardian is named.
How do I begin the process to be appointed a guardian?
In most states, 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. Not everyone hires an attorney, but it's usually the safest and smartest thing to do. Guardianship law is complex and changes quickly, and a lawyer can help you understand the requirements and rules.
I'd like to be my aunt's guardian, but I don't have a lot of money. Will I have to pay her expenses?
Guardians use their wards' money to take care of their wards, not their own money. However, it gets tricky if the ward doesn't have enough money or income to cover expenses—and that is when family members often end up using their own resources.
Do guardians get paid?
It's possible for guardians to be paid a reasonable fee out of the ward's estate (from the ward's assets), but you'll likely need court approval. As a guardian, you can also get reimbursed for expenses you paid out of pocket on behalf of the ward. But you'll need to keep very accurate financial records for the court.
What happens if someone needs a guardian but has little money, and there's no family member or friend who can do it?
In some states, the court will appoint a public guardian, usually a state-funded agency, to care for the person. However, other states, like Massachusetts, don't have an agency to address this issue, or they provide public guardianship only in certain areas of the state. This leaves many at-risk Americans in need of services.
While some charitable organizations provide these types of services, and professional guardians and attorneys sometimes serve as guardians pro bono (for free), this remains an important problem for many states to resolve.
My grandmother's guardian (my aunt) isn't taking very good care of her and no longer lets me visit. What can I do?
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.
Asking the court to help will require your aunt to explain her actions. It's possible she has (what she believes to be) a good reason for limiting your visits. It will be the court's job to decide if she is making a good decision. And if she's not, the court can require change.
It is especially important to get help if you suspect that your aunt is not treating your grandmother with her best interest in mind. If you suspect abuse, report it to your county's adult protective services or the police.
How do I get help with a guardianship?
If you have questions about a guardianship—as a ward, potential guardian, or as a family member or other loved one—get help from a qualified family or estate planning attorney. You can get started by searching for local attorneys in our lawyer directory.