A guardianship is created when a court gives a person, the guardian, limited or full authority over the person and/or the estate of an incapacitated person. “Incapacitated person” means one who is a minor (under age 18), or an adult that cannot care for their own physical health or manage their own financial affairs due to a physical or mental condition. This person is referred to as the “proposed ward” or “ward.” While the need for a guardianship often arises out of immediate necessity, the establishment of a future guardianship can be a helpful estate planning tool.
A guardian of the person has the right to physical possession of the ward and to establish the ward's legal domicile. The guardian has the duty to provide care, supervision, and protection for the ward, and to provide the ward with food, clothing, shelter, and medical care. A guardian of the ward's estate is entitled to possess and manage all property belonging to the ward, manage the ward’s financial affairs, and bring and defend suits by or against the ward.
Where a minor is concerned, a guardian of the person is often appointed because both of the minor’s parents are unfit or deceased. A guardian of the ward’s estate may be appointed because the minor has obtained a substantial amount of money, property, or is receiving some type of monthly monetary benefit.
Guardianships of incapacitated adults are usually created due to the ward’s mental incapacity, as is often the case with older adults suffering from dementia or Alzheimer’s disease. These degenerative conditions make it increasingly difficult for the ward to manage their personal and financial affairs; therefore a guardian is necessary for the safety and welfare of the ward and their property.
At Kliem & Associates we handle guardianship proceedings as well as other estate planning matters.